                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 4, 2005 Session

      RIDGELAKE APARTMENTS v. HARPETH VALLEY UTILITIES
        DISTRICT OF DAVIDSON AND WILLIAMSON COUNTIES

                    Appeal from the Chancery Court for Davidson County
                      No. 02-2395-I   Irvin Kilcrease, Jr., Chancellor



                     No. M2003-02485-COA-R3-CV - Filed April 8, 2005


Harpeth Valley Utilities District of Davidson and Williamson Counties is a supplier of water and
sewer services with charges for such services being based on gallonage of water measured by a water
meter installed where the water main supply line joins the water line owned by the customer.
Ridgelake Apartments is an apartment complex served by both a main residential water meter and
an irrigation meter. Water supplied through the irrigation meter is not subject to sewer charges, but
water supplied through the main residential meter is subject to such charges. Over a period of years,
leaks developed in the water lines owned by Ridgelake on the Ridgelake side of the main residential
water meter. Ridgelake sought reimbursement of sewer charges for water lost in these leaks on the
basis that such water did not enter the sanitary sewer system. The trial court granted summary
judgment to the Utility District, and we affirm the action of the trial court.

     Tenn. R. App. P. 3 Appeal as of right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

Adam O’Lyddy Knight, Nashville, Tennessee, attorney for appellant, Ridgelake Apartments.

Robert Edmond Parker, Sara Kathleen Wilson Smith, Nashville, Tennessee, attorneys for appellee,
Harper Valley Utilities District of Davidson and Williamson Counties.

                                            OPINION

        Harpeth Valley Utilities District of Davidson and Williamson Counties is a governmental
entity organized pursuant to the Utility District Law of 1937 (Tenn.Code Ann. § 7-82-101 et seq.).
The Utility District furnishes water and waste water services to several counties in Middle
Tennessee, including a portion of Western Davidson County encompassing the Bellevue area.
Ridgelake Apartments is an apartment complex located in the Bellevue area of Western Davidson
County.
        The Utility District supplies water to its customers for both regular usage and for irrigation
usage. These usages are separately metered because water used for irrigation purposes does not enter
the sanitary sewer system as waste water such as happens with water passing through the regular
service meter. Consequently, water passing through the irrigation meter is not subject to sewer
service charges while water passing through the regular service meter is subject to sewer service
charges, with both water and sewer charges being based upon the number of gallons of water passing
through the regular service meter.

        Ridgelake Apartments is a very large apartment complex, and since at least 1986, has had
a separate irrigation meter to measure water used for landscaping and maintenance purposes, which
does not return to the sanitary sewer system. Water passing through the irrigation meter is not
involved in this case.

        At some time between the Fall of 2000 and late 2001, Ridgelake discovered several leaks in
its water lines on its property “downstream” from its regular water service meter. Ridgelake then
repaired these leaks, but asserted that for the past several years it had been overcharged for waste
water services because water that had passed through the regular service water meter and then leaked
from its pipes had never reached the sanitary sewer system. Ridgelake reasons that it should be
reimbursed for sewer charges on water that passed through the regular service meter but leaked from
its pipes. The Utility District declined to consider the claim of Ridgelake on the basis that the Utility
District was not responsible for leaks occurring in the Ridgelake lines “downstream” of the regular
water meter and that Ridgelake asserted no complaint about the calculation of water entering its lines
as calculated by the regular service water meter.

         Ridgelake filed this Complaint asserting that it was entitled to reimbursement for water lost
through these leaks for the 36-month period preceding discovery of the leaks pursuant to the terms
of Tennessee Code Annotated section 28-3-302. After discovery was complete, the Utility District
filed a Motion for Summary Judgment which the trial court granted without comment. Ridgelake
filed a timely appeal.

       The well-known general standard for appellate review is set forth in Byrd v. Hall, 847 S.W.2d
208 (Tenn. 1993). Therein, it is held:

        In determining whether or not a genuine issue of material fact exists for purposes of
        summary judgment, courts in this state have indicated that the question should be
        considered in the same manner as a motion for directed verdict made at the close of
        the plaintiff’s proof, i.e., the trial court must take the strongest legitimate view of the
        evidence in favor of the nonmoving party, allow all reasonable inferences in favor of
        that party, and discard all countervailing evidence. Downen v. Allstate Ins. Co., 811
        S.W.2d 523, 524 (Tenn.1991); Poore, 666 S.W.2d at 49; Dunn, 833 S.W.2d at 80;
        Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276, 279 (Tenn.App. 1977); Taylor,
        573 S.W.2d at 480. Then, if there is a dispute as to any material fact or any doubt as
        to the conclusions to be drawn from that fact, the motion must be denied. Poore, 666
        S.W.2d at 49. (“[I]f the mind of the court entertains any doubt whether or not a


                                                   -2-
        genuine issue exists as to any material fact it is its duty to overrule the motion.”);
        Dooley v. Everett, 805 S.W.2d 380, 383 (Tenn.App.1990). The court is not to
        “weigh” the evidence when evaluating a motion for summary judgment. See
        Hamrick v. Spring City Motor Co., 708 S.W.2d 383, 389 (Tenn. 1986).

Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn.1993).

        No presumption of correctness attaches to decisions granting summary judgment because
they involve only questions of law. On appeal, the reviewing court must make a fresh determination
whether the requirements of Tennessee Rule of Appellate Procedure 56 have been met. Gonzales
v. Alman Constr. Co., 857 S.W.2d 42 (Tenn.Ct.App.1993).

         As a Utility District organized pursuant to statute, Harpeth Valley Utilities District of
Davidson and Williamson Counties is authorized by Tennessee Code Annotated section 7-82-304(6)
to fix, maintain, collect and revise rates and charges for any service. The Utility District set its water
and sewer rates based on “. . . the amount of water sold as determined by meter measurement; . . .”
This adopted rate structure provides in part:

        7.(A) Each customer shall pay monthly in accordance with the following rates based
        on the amount of water sold as determined by meter measurement; provided further
        that the monthly bill for a multi-unit structure shall be calculated as if each unit were
        individually metered.

                WATER METERED                    WATER RATE                SEWER RATE
         1,500 gallons or less                $5.25                     $5.75
         Next            1,500 gallons        2.21 per 1,000 gal.       4.56 per 1,000 gal.
         Next            1,500 gallons        2.42 per 1,000 gal.       4.56 per 1,000 gal.
         Next            1,500 gallons        2.63 per 1,000 gal.       4.56 per 1,000 gal.
         Next            2,000 gallons        2.84 per 1,000 gal.       4.56 per 1,000 gal.
         Next            2,000 gallons        3.16 per 1,000 gal.       4.56 per 1,000 gal.
         Next           40,000 gallons        2.99 per 1,000 gal.       4.79 per 1,000 gal.
         Next           50,000 gallons        2.76 per 1,000 gal.       4.79 per 1,000 gal.
         Next         400,000 gallons         2.30 per 1,000 gal.       4.79 per 1,000 gal.
         Next         500,000 gallons         2.19 per 1,000 gal.       4.79 per 1,000 gal.
         Next       1,000,000 gallons         1.81 per 1,000 gal.       3.94 per 1,000 gal.




                                                   -3-
         (B) All residential sewer service bills for the four (4) billing periods between July
       1 and October 31, each year, will automatically have the sewer service charge
       computed on the winter time, or non-sprinkling period, water consumption, or actual
       water consumption, whichever is less.

       No question is raised in this appeal as to the authority of the Utility District to impose water
and sewer rates, nor is any assertion made that the rates charged by the Utility District are excessive.
While we are not favored by the trial court with any findings of fact or any specific basis for the
grant of summary judgment, the complaints made by Ridgelake may be summarized by the
proposition that:

       [S]ince water passing through the meter and into its water lines leaked in massive
       quantities from those lines into the ground, such lost water should not be subject to
       the sewer rate because it never went into the sanitary sewer system.

       Plaintiff bases its complaint primarily on Tennessee Code Annotated section 28-3-302 which
provides:

          28-3-302. Collection or reimbursement for underpayments or overpayments
        — Water or sewer service. — Notwithstanding any other provision of law to the
       contrary, if gallonage for water or sewer service or both is inaccurately recorded or
       registered due to equipment failure and results in the customer being undercharged
       or overcharged, and the customer is unaware of the error, defect or failure, no utility
       district, municipality, or water or sewer system or company shall be authorized to
       collect or assess a charge for the unpaid gallonage or to reimburse the customer for
       overpayment of such usage, prior to thirty-six (36) months from the date the error is
       discovered and billed; provided, that if a date certain can be established for such error
       which is less than thirty-six (36) months, no utility district, municipality, or water or
       sewer system or company shall be authorized to collect or assess a charge for such
       usage, or to reimburse the customer for overpayment of such usage, beyond such
       date. [Acts 1989, ch. 411, § 2.]

        The position of the plaintiff is based upon the assumption that the Utility District can charge
sewer rates only upon water that actually goes into the sanitary sewer system. No basis exists for
such an assertion. Both the water and sewer rates are measured by the amount of water supplied by
the Utility District as the gallonage is measured at the water meter where the Utility’s water main
joins the water supply lines owned by Ridgelake. Theoretically, if there are no leaks in Ridgelake’s
lines “downstream” of the water meter, all water not consumed by the apartment complex will end
up in the sanitary sewer system.

        No statute requires the Utility District to measure the water actually going into the sanitary
sewer system and measure its rates accordingly. The rate structure adopted by the Utility District
states clearly and without ambiguity that both the water rate and the sewer rate are based on “. . . the
amount of water sold as determined by meter measurement”.


                                                  -4-
       Ridgelake states its case accurately and succinctly in its brief:

               The gallonage for sewer services was inaccurately recorded or registered.
       Even the Defendant does not deny this fact. The reason it was inaccurately recorded
       was because there was an equipment failure which resulted in a leak. As a result of
       the equipment failure, the gallonage recorded or charged was inaccurate and reflected
       gallonage that had not returned to the sewer for treatment. In fact the sewer charges
       are based upon an assumption. No data is available for the customer’s inspection to
       prove or disprove the amount of water that is returned to the sanitary sewer by an
       individual customer. This has resulted in the overcharging of Ridgelake by
       $139,465.00. Accordingly, Tennessee Code Annotated § 28-3-302 applies and the
       Defendant is in violation of the same.

               Ridgelake has not, and is not asserting that they are entitled to a refund of
       monies associated with the amount of water that went into the meter. Ridgelake is
       only asserting that the sewer charges were inaccurate due to the leaks. Defendant
       does not dispute that these leaks occurred. Additionally, Ridgelake has never
       asserted that they are entitled to any refund outside of the 36 month period
       immediately preceding the discovery and notification of the overcharge and payment
       of the same.

        In order for this position to be viable, one would have to first assume that the term
“equipment failure” as used in Tennessee Code Annotated section 28-3-302 referred to both the
water meter and the defective Ridgelake water lines downstream from the water meter. While the
statute is inartfully drafted where it states “. . . if gallonage for water or sewer service or both is
inaccurately recorded . . . ”, the only mechanism for recording gallonage is, in fact, the water meter.

        Plaintiff offers no evidence that measuring both water and sewer rates by the amount of
gallonage recorded by the water meter is either in violation of law or an unacceptable practice. The
affidavit of the expert witness, Mark Parten, offered by Ridgelake is revealing. He states:

               8. After this increase was noted, leak detecting services were hired which
       discovered leaks from Ridgelake’s main waterlines. Ultimately these leaks and any
       other leaks that were discovered in the repair of these main leaks were repaired.

               9. Thereafter, as agent for Ridgelake, I sought a refund for sewer charges
       which had been incurred by Ridgelake on the water which had not returned to the
       sanitary sewer. The amount of the refund sought was based upon the water
       consumption after the leaks were repaired as compared to the consumption of water
       during the time of the leaks.


               10. This request on behalf of Ridgelake for a refund was denied by the
       District’s Board of Commissioners at the April 2, 2002 meeting. However, Robert


                                                 -5-
       Parker, attorney for the District admitted to me and Mike Willis of TTC, Inc. that if
       the plumber’s affidavit was accurate that he could agree that the water that leaked
       from the mains did not return to the sanitary sewer.

               11. In my position as a consultant for apartment complexes with respect to
       their water and wastewater consumption, I have had the opportunity to review dozens
       of policies from different Utility Districts across the State of Tennessee and the
       southeast.

               12. The methods for billing and refunding monies to customers by Utility
       Districts in the State of Tennessee are varied.

               13.      I have reviewed the leak adjustment policy and all other policies
       attributable to Harpeth Valley Utilities District that have been provided to me by the
       District in the course and scope of my consulting capacity for Ridgelake.

               14.      After a review of the leak adjustment policies of Harpeth Valley
       Utilities District, as compared to other leak adjustment policies from other Utility
       Districts in the State of Tennessee, their leak adjustment policy is stringent.

               15.      Ridgelake is an apartment community with over 500 individual
       apartments. As people move in and out on a continuous basis, Ridgelake experiences
       fluctuations in their water consumption that would very easily hide what Mr. Barge
       and Mr. Brown call “unexpected fluctuations.”

        Mr. Parten speaks only of the “leak adjustment” policy of the Utility District and its alleged
“stringent” character. No statute requires the Utility District to adopt any “adjustment policy”. More
importantly, Plaintiff does not sue for recovery under the “adjustment policy” of the Utility District.

       Plaintiff offers neither testimony nor citation of law that prohibits measurement of both water
and sewer rates by gallonage recorded at the meter. Ergo, the testimony of Daniel B. Barge, Jr.,
consulting engineer, is essentially undisputed:

               A.      Each meter is read to determine the amount of water used by that
       customer or I should say flowing to that customer during the billing period. If this
       customer also has a sanitary sewer system, this customer is billed for the sanitary
       sewage, also. If he does not have, he pays for water only. And I think that’s standard
       for the state of Tennessee.

               Q.    How do you determine the charge for water that’s used?

              A.       It’s based on the rates that are adopted by the management of the
       system.



                                                 -6-
               Q.    And what are those rates applied to?

               A.    What are they applied to?

               Q.    Yes, sir.

               A.    For a gallon of water.

               Q.    And where do you get the gallon of water?

               A.    From the reading of the meter.

             Q. All right. For wastewater, how is it determined that you’re billed for
       wastewater?

              A. You are billed for wastewater based on the amount of water that flows
       through the meter.

               Q. What if some of the water that flows through the meter doesn’t go back
       into the wastewater system because of a leak in the customer’s line?

               A.    You’re still billed for it.

               Q.    Now, is that standard in Tennessee?

               A.    Yes.

               Q.    Why is that?

              A. Because the utility cannot be responsible for the maintenance of the
       system that’s beyond its meter.

             Q.        And is that standard policy based on your years of experience in
       Tennessee?

               A.    Yes.

        The Utility District has chosen to measure its rates for both water and sewer services by the
gallonage recorded at the meter. Plaintiff offers neither authority in law nor proof in fact that such
policy does not conform to law. Plaintiff offers no authority that the Utility District may be
compelled to either measure waste water as it enters the sewer system or base its waste water charges
on such measurements. Stretching Tennessee Code Annotated section 28-3-302 as far as it may be
stretched, leakage downstream of the water meter does not measure anything. The only equipment
by which water or sewer service is “. . . recorded or registered . . .” is the water meter itself. While


                                                   -7-
it is obvious that water leaking from defective water lines downstream of the water meter does not
enter the sanitary sewer system, it is equally clear that the failure of the water to enter the sanitary
sewer system is a result of Ridgelake’s failure to properly maintain its own lines.

        The “leakage adjustment” policy referred to by Mr. Parten is actually described in the
affidavit of Consulting Engineer Barge.

              8.      I am aware of the District’s leak adjustment policy for leaks in a
       customer’s water or wastewater utility service lines on the customer’s side of the
       meter. This policy requires a customer to submit a written request for an adjustment
       for such leaks within ninety (90) days of the due date of the bill for which the
       adjustment is requested. The District’s policy does not permit a customer to allow
       potable water or untreated wastewater to leak from the customer’s lines for lengthy
       or extended periods of time and then to request a refund for charges paid for the
       estimated amount of leaked water or wastewater. It is the customer’s responsibility
       to maintain its own water and wastewater service lines and to monitor its bills for
       unexpected fluctuations in usage and charges. The District’s policy with regard to
       adjustments for leaks is in all respects reasonable and constitutes sound water and
       wastewater utility management and fiscal responsibility. The District’s policy in my
       opinion is clearly in the public’s interest and protects and promotes the public health
       and environment.

               9. The District’s leak adjustment policy, including its 90-day provision, is
       typical of such policies adopted by public water and wastewater utilities in
       Tennessee. In fact, the District’s policy might be considered liberal. I have no
       knowledge of any legal or regulatory requirement that requires a public water and
       wastewater utilities provider to give refunds for any period of time based upon leaks
       in the customer’s own water or wastewater service lines. Potable water is a precious
       natural resource, of which there is a limited supply. The District’s leak adjustment
       policy promotes water conservation and encourages its customers to continually
       monitor their water usage.

       Aside from accommodating a customer, the “leak adjustment” policy is of value to the Utility
as explained by Mr. Barge.

              Q.     Let me ask you this: Do you know of any reason why a public
       municipality or public utility would even care if water was leaking from a customer’s
       own service line?

               A.    Well, yes, I think you’d care because – –

               Q.    Why would you care, Mr. Barge?

               A.    Well, because it’s environmentally offensive.


                                                  -8-
       Q.   All right. Why is it environmentally offensive?

       A. Because it spreads disease and odors, and it’s just not the right thing to
do.

       Q. Now, that would be true of a wastewater line of a private customer that
was leaking, right?

       A.    Yes.

        Q. What about a water line, a potable water line, if it leaked, does a public
entity care that produces and serves water to the public?

        A. Well, I think in general they would if it became erosive or a nuisance
to somebody, and I also think as an operator and a replenisher of the water, you just
hate to see that product wasted.

       Q.    Why?

       A.    Why?

       Q.    Yes, sir.

       A.    Because if there were enough wasted, there wouldn’t be enough to go
around.

       Q. Well, are you suggesting that the public purveyor of water has some
responsibility to the rest of the public to have an adequate supply of water at all
times?

       A. Yes, I do believe that if you are in the water business and furnishing
water, you ought to have an adequate supply of water available to the customer
whenever needed.

       Q.    All right. If you would go to paragraph 8 of your Affidavit.

       A. All right.

       Q.    If you would, read the third sentence.

        A. The district policy does not permit a customer to allow potable water or
untreated wastewater to leak from a customer’s line for lengthy or extended periods
of time and then to request a refund for charges paid for the estimated amount of
leaked water or wastewater.


                                         -9-
                Q.    Do you believe, based on you experience, that that is a sound policy?

                A.    Yes, sir.

              Q.      Do you believe that that is the policy that is generally standard by
        municipalities and public utility districts in the water and wastewater business in
        Tennessee?

                A.    I do.

        While one might say that measurement of sewer rates by water meter readings will not be a
particularly accurate measurement of what goes into the sewer system, how does one measure the
volume of non-liquid waste that goes into the sanitary sewer system from a 500-apartment complex
during the same month of the water measurement?

        The Utility District has the legislative authority to set rates for water and sewer service.
Tenn.Code Ann. § 7-82-304(6). Acting under this legislative authority, the Utility District has
chosen to measure its rates for both water and sewer by the number of gallons passing through the
water meter. As is the case with solid waste collection, “There is no distinction made in the statutes
between the two services relative to the method of assessing costs for the services.” Horton v.
Carroll County, 968 S.W.2d 841, 845 (Tenn.Ct.App.1997). Little authority is cited by either party
which addresses the basic question in this lawsuit: what is improper or illegal in using gallonage
at the water meter as a basis for calculating sewer charges? Since the statutes give the Utility District
the authority to set its rates and no law compels sewer rates to be set by measuring intake at the
sanitary sewer system, one is hard put to find a case that has challenged the method by which the
Utility has chosen to measure its rates.

       Alternatively to its breach of contract claim, Ridgelake asserts “the Defendant is liable to the
Ridgelake in Quantum Meruit and/or equitable restitution as the Defendant was unjustly enriched
by charging and receiving payment for sewer services on water which never returned to the sanitary
sewer and was therefore not treated by Defendant.”

        A substantial body of authority holds that quantum meruit, quasi contract, and unjust
enrichment are equivalent terms for an equitable remedy. Creative Demos, Inc. v. Wal-Mart Stores,
Inc., 955 F.Supp. 1032, (S.D.Ind.1997) vacated on other grounds, 142 F.3d 367 (7th Cir. 1998); In
re Estate of Boyd, 8 P.3d 664 (Idaho 2000); Esquivel v. Day’s Inn of Branson, 959 S.W.2d 486
(Mo.Ct.App.1998); Myrtle Beach Hospital, Inc. v. City of Myrtle Beach, 532 S.E.2d 868 (S.C. 2000).

       As only contracts implied in law are creatures of equity, distinction must be made between
contracts implied in law and contracts implied in fact. This distinction is made in Tennessee.

        Tennessee “recognizes two distinct types of implied contracts; namely, contracts
        implied in fact and contracts implied in law, commonly referred to as quasi



                                                  -10-
       contracts.” Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 53-54, 407 S.W.2d 150, 154
       (1966).

       Contracts implied in fact arise under circumstances which show mutual intent or
       assent to contract. Weatherly v. American Agric. Chem. Co., 16 Tenn.App. 613, 65
       S.W.2d 592 (1933). Mutual assent and a meeting of the minds cannot be
       accomplished by the unilateral action of one party. See Batson v. Pleasant View Util.
       Dist., 592 S.W.2d 578, 582 (Tenn.App.1979). Here, the City’s unilateral action in
       mailing invitations to bid to Angus does not establish mutual assent. No contract
       between the parties existed until Angus submitted a bid on a project which was
       accepted by the City. Angus submitted no proof in the record that an invitation to bid
       constituted mutual assent that Angus would contract with City for the performance
       on a demolition project. Therefore, Angus failed to present evidence creating a
       genuine issue regarding a contract implied in fact.

       Contracts implied in law are created by law without the assent of the party bound, on
       the basis that they are dictated by reason and justice. Weatherly v. American Agr.
       Chem. Co., 16 Tenn.App. 613, 65 S.W.2d 592 (1933). A party seeking to recover on
       an implied in law or quasi contract theory must prove the following:
               A benefit conferred upon the defendant by the plaintiff, appreciation
               by the defendant of such benefit, and acceptance of such benefit under
               such circumstances that it would be inequitable for him to retain the
               benefit without payment of the value thereof.
       Paschall’s, Inc. 219 Tenn. at 57, 407 S.W.2d at 155.

Angus v. City of Jackson, 968 S.W.2d 804, 808 (Tenn.Ct.App.1997).

       Observing in footnote that the unfortunate use of “implied contract” to connote both true
(“implied in fact”) and quasi (“implied in law”) contracts has led to much confusion, the Supreme
Court of South Carolina corrected its previous mistake in this respect:

           C. Implied by law contract or quantum meruit

           The Hospital argues that the Court of Appeals should have required respondents
       to pay the bills under either a theory of quantum meruit or contract implied by law.
       We disagree.

           First, we correct a misstatement of law which first appeared in 1981. Prior to our
       decision in Piedmont Premium Service, Inc. v. South Carolina Ins. Co., 277 S.C. 99,
       283 S.E.2d 828 (1981), we used the terms quantum meruit, quasi-contract, and
       contract implied by law as equivalent terms, to distinguish those situations where
       equity would aid recovery from those where law provided the remedy, that is, express
       contracts or contracts implied in fact. See, e.g., United States Rubber Products, Inc.
       v. Town of Batesburg, 183 S.C. 49, 190 S.E. 120 (1937); Rainwater v. Hobeika, 208


                                               -11-
       S.C. 433, 38 S.E.2d 495 (1946). In a law action, the measure of damages is
       determined by the parties’ agreement, while in equity, “the measure of the recovery
       is the extent of the duty or obligation imposed by law, and is expressed by the
       amount which the court considers the defendant has been unjustly enriched at the
       expense of the plaintiff.” Town of Batesburg, 190 S.E. at 126.

           In Piedmont Premium, supra, we erroneously defined a contract implied by law
       as resting on “a duty imposed by law and treated as a contract for purposes of remedy
       only.” Id., 283 S.E.2d at 829. Piedmont Premium directly quoted 17 C.J.S.
       Contracts § 4(b) as the source of this definition of a contract implied by law
       (equitable). In fact, § 4(b) is a discussion of implied in fact (legal) contracts. We
       overrule Piedmont Premium to the extent it erroneously defines a contract implied
       by law and return to our original view: quantum meruit, quasi-contract, and implied
       by law contract are equivalent terms for an equitable remedy.

Myrtle Beach Hospital, Inc. v. City of Myrtle Beach, 532 S.E.2d 868, 872 (S.C. 2000).

        No matter what terms are used to describe the purely equitable remedy provided by quasi
contract implied in law, quantum meruit and unjust enrichment, this equitable remedy is generally
not available if a valid and enforceable written contract governs the subject matter in issue between
the parties. As the Court of Appeals of New York explained:

       Turning to plaintiff’s cause of action sounding in quasi contract, we conclude that it
       was properly dismissed. The existence of a valid and enforceable written contract
       governing a particular subject matter ordinarily precludes recovery in quasi contract
       for events arising out of the same subject matter (Blanchard v. Blanchard, 201 N.Y.
       134, 138, 94 N.E. 630; see also, 66 Am.Jur.2d, Restitution and Implied Contracts,
       § 6, at 949). A “quasi contract” only applies in the absence of an express agreement,
       and is not really a contract at all, but rather a legal obligation imposed in order to
       prevent a party’s unjust enrichment (Parsa v. State of New York, 64 N.Y.2d 143, 148,
       485 N.Y.S.2d 27, 474 N.E.2d 235; Farash v. Sykes Datatronics, 59 N.Y.2d 500, 504,
       465 N.Y.S.2d 917, 452 N.E.2d 1245; Bradkin v. Leverton, 26 N.Y.2d 192,197, 309
       N.Y.S.2d 192, 257 N.E.2d 643; Smith v. Kirkpatrick, 305 N.Y. 66, 73, 111 N.E.2d
       209; Grombach Prods. v. Waring, 293 N.Y. 609, 615, 59 N.E.2d 425; Miller v.
       Schloss, 218 N.Y. 400, 407, 113 N.E. 337; see also, 1 Williston, Contracts § 3A [3d
       ed]; Calamari and Perillo, Contracts § 1-12, at 19 [2d ed]; 1 Corbin, Contracts § 19).
       Indeed, we have stated that: “Quasi contracts are not contracts at all, although they
       give rise to obligations more akin to those stemming from contract than from tort.
       The contract is a mere fiction, a form imposed in order to adapt the case to a given
       remedy * * * Briefly stated, a quasi-contractual obligation is one imposed by law
       where there has been no agreement or expression of assent, by word or act, on the
       part of either party involved. The law creates it, regardless of the intention of the
       parties, to assure a just and equitable result” (Bradkin v. Leverton, 26 N.Y.2d, at 196,
       309 N.Y.S.2d 192, 257 N.E.2d 425, supra [emphasis added]).


                                                -12-
Clark-Fitzpatrick v. Long Island Rail Road Co., 516 N.E.2d 190, 193 (N.Y.1987).

       Acting on this same line of reasoning and recognizing that equitable remedies are not
available where an expressed contract exists, this Court held:

        As we have earlier determined, an express contract existed between plaintiffs and
        defendants with respect to the payment of maintenance fees in exchange for utilities
        and services. In this state, no right exists in law or equity which allows a party to
        abandon an express contract and seek recovery in quantum meruit or under an
        implied contract theory. In Fletcher Realty, Inc. v. Hayslope Properties, 712 S.W.2d
        478 (Tenn.App.1986), a realtor sought to avoid the terms of an express agreement
        regarding commission on the sale of property and to recover on the basis of quantum
        meruit. This court rejected that claim stating “[i]t is a general rule of law that an
        implied contract or quasi-contract will not be imposed in circumstances where an
        express contract or agreement exists.” Fletcher Realty, 712 S.W.2d at 481 (citing 66
        Am.Jur.2d Restitution and Implied Contracts § 6 (1964)). Defendant Lakes
        Resort/counter-plaintiff filed a counter-complaint, an amended counter-complaint,
        and a second amended counter-complaint, but it never sought recovery on the basis
        of an express contract. Instead, counter-plaintiff contended it should be “reimbursed
        by the lot owners on the basis of unjust enrichment, quasi-contract, quantum meruit,
        or implied contract.”

Scandlyn v. McDill Coumbus Corp., 895 S.W.2d 342, 349 (Tenn.Ct.App.1994).

        Recognizing that this equitable remedy, primarily based upon on the inherent inequity of
unjust enrichment, cannot be imposed where a valid contract exists on the same subject matter, this
Court reversed such an equitable award in Jaffe v. Bolton, 817 S.W.2d 19 (Tenn.Ct.App.1991).

        The clear prerequisite to any recovery under this equitable remedy is “(1) there must be no
existing, enforceable contract between the parties covering the same subject matter, . . .” Castelli
v. Lien, 910 S.W.2d 420, 427 (Tenn.Ct.App. 1995).

        This equitable remedy is simply not available to Ridgelake under the facts of this case.

         Ridgelake further asserts that the billing practices of Harpeth Valley Utilities District are
arbitrary and capricious and that its system for charging and billing for sewer services violates the
due process rights of its customers, both under the United States Constitution and the Constitution
of the State of Tennessee. These general assertions provide no basis for relief. These parties defined
their rights and responsibilities by the terms of their bilateral contract. That contract is clear in its
terms and in its remedies; and, since it is clear that the water meter was the only instrument of
measure provided for in the contract, and there is no error in those measurements, no authority exists
for Rideglake’s position and, indeed, no relevant authority is cited.


                                                  -13-
        It appears from the record and from argument before this Court that the Utilities District
conceded that Ridgelake was entitled to consideration of a refund under the 90-day leak adjustment
policy. Such adjustment may be addressed by the trial court on remand.

        The judgment of the trial court is in all respects affirmed, and the case is remanded for such
further proceedings as may be necessary.

       Costs of the cause are assessed to Appellant.




                                                       ___________________________________
                                                       WILLIAM B. CAIN, JUDGE




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