case this afternoon is case number four day sixteen dash zero eight four or which is consolidated with or dash sixteen tears zero eight or circus roland is a thomas today we're here for an appeal that is a prime example of the reason that the uniform arbitration act as within their missions to vacate an arbitration we have two instances here with her a couple of instances here w exceeded their authority under with respect to the arbitration and then they also failed to act as a neutral fact finder in this arbitration the uniform arbitration act also curves out an exception where in the word may be corrected or modified if there are evident miscalculations on base that is an alternative theory that we have put forth in our briefs the additional element that we are here to discuss is the  of the trial court no wording attorney's fees for really a pelleas opposition to our motion to vacate the trial court level what we would suggest is an improper construction of what the integrated business and employment agreement states in the damages we have as far as a record in this case goes much further than simply a transcript of the case we have a lengthy detailed arbitration award which sets forth what the panel interpreted the evidence being presented at the arbitration was that's important because we have the ability to review what the award was and see exactly how the panel interpreted that information and what their findings were when they received that information the panel went through great lengths to put out a very lengthy arbitration or i believe it was around thirty pages that is going through the facts as they had seen them going through what they had considered as testimony and evidence on both sides of the pendulum but it's within this award that it demonstrates a multiple occasions when the panel exceeded  should we rescue him from his choice correct your honor while although the case was litigated through arbitration and i understand exactly what you're saying with respect to the court's not so much ability but their desire to go in and overturn an arbitration award all we have here is we have a panel that clearly exceeded what their powers were this  argument seems to be exceeded because they got it wrong they can't work that that they might be mistaken that they used bad judgment that they misunderstood even what was there before them that's not a side of the didn't act in good faith they might be stupid but that's what you chose so why again why should we be concerned with and judge we're not asking for a bailout we are asking that the court review the burdens they're placed on each party and the appellate or the arbitration panel acknowledge what those burdens were and found exactly that the appellee did not meet those burdens and decided to go further decided to take to the next step at three different levels in the last profit damages the burden is that the person claiming those damages must show or must establish those with reasonable certainty and must show that it was the defendant's wrongful conduct that caused those damages the panel articulated quite clearly that jersey was the  case actually admitted at the arbitration that he could not tell if it was thomas actions or for some other reason and there was evidence provided at that arbitration that it was for other reasons sounds like they made a mistake  one being that it's really arbitrators have exceeded their powers and then secondly where they oh it's evident that it was partiality with can you just specifically record of the arbitration award as a whole we've identified what the burdens are on the party the panel has established that the appellee did not meet those burdens and regardless that the appellee did not meet those burdens they went forward and created evidence if you look to the calculations that the panel devised which was on the burden of the appellee to establish the panel created the starting numbers for how we would calculate lost profits damages but how do we really know that because the only reference made to the evidence is so the arbitration award itself are you saying that the record demonstrates that the arbitration decision so for every bit of evidence that was presented at the time of arbitration because you have established of your view argument here is that the arbitrator's went beyond the evidence presented and harder to do that we've seen you it have to have the evidence that was presented and to be able to say to the court there was no such evidence presented but you're you're dealing with a vacuum here there's no record and your honor i would respond with the arbitrators put forth this lengthy arbitration award and within that award they had articulated what evidence they took into consideration and while there may not be as sure of the exhibits that were submitted to the arbitration panel they do articulate what they looked at in order to develop their award in this instance the only individual that provided expert testimony on himself and the panel went to great lengths to explain why that individual was not qualified to render lost profit damages opinions that his methodology and calculations were unreliable and the panel went so far as to say that we disagree with or apologize i don't want to the panel actually said that they do not accept damages calculations again that's the burden that is on the appellee that right there says that the panel said you know what he's tried to provide us with what the calculations are he's failed to do so however we're going to look the other way and that we have experience in this issue we'll go ahead and lay out what the calculation should be we'll go ahead and fill in the blanks for these values and that's what the heart of our our human is here the panel but for the everything that they had in this arbitration award and we've tried to we try to extremely hard just to keep it to what that award says and when the panel comes out and express admissions they did not know and they did not know if the clients left because of tome or not that directly affects one burden on the issue of we do not accept jerseys damages damages filling in their own numbers and values i know you mean and late in the game and you have to deal with the landscape as a exists at the time and there's no doubt th point to the record point to the evidence that was actually presented in order to make that argument complete and is there any other way to do that other than actually having a transcript of the of the evidence of the be exhibits that were presented your honor i don't believe that there is a way other than to look at the award and again i the award is what the panel and use in their interpretations and going forward if there was in since wearing the appellee had offered the damages calculations by  a written document the panel went to great lengths to explain what they were looking at in the testimony that they had heard and try to articulate in their narrative or their decision how that came about so while while i have to concede that yes we were not to counsel at the arbitration we are not aware of exactly what records were submitted the arbitrators in their decision do a very good job putting forth what it is that they relied on and also improperly relied on so judge is going back to the brief itself and we had touched on this briefly the panel unilaterally established a starting point for last gross revenues the unilaterally determine save costs unilaterally determined actual revenue use the attrition rate the over inclusions these are all the burden of jervy to savage and he fails to do so the panel articulated that within their decision the response of the appellee is that hannah looked at everything came to a conclusion but they do not even acknowledge the burdens that were that they board during the arbitration the arbitration does not remove the parties or simply taking the case through arbitration as opposed to the trial court does not lessen the burdens of parties half arbitration does not allow the fact finder even if they are aware of the area or have the expertise and history in the area to remove the burden of someone else and undertake it for themselves in order to come up with a lot of damage for those reasons we feel that the panel clearly exceeded its powers and failed to act as an impartial neutral fact finder in this arbitrate i just want to touch briefly on another smaller issue before the clock sir is winding down but the issue of attorneys fees the trial court constructed the integrated business acquisition employment agreement the provision for attorneys fees word action they had felt that the word action met our motion to vacate as we've pointed out in our briefs the motion of vacate is not an action the underline actions were the complaints are filed a motion of vacated simply a continuation of the proceeding much like an appeal appeal is a continuation of the cd the trial court improperly constructed that aspect of the integrated business acquisition point in agreement and found that our motion constituted an action to which attorneys fees should be awarded and we would ask the court to reverse that decision the final issue that i wanted to discuss is and this is for the purposes of an alternative argument to our motion to vacate we feel that the appropriate action vacate the arbitration award for with respect to the values then the calculations that panel have put forth there are a couple of aspects to take into consideration with respect to attrition again this was the burden of jervy to present evidence and establish what all these values would be the panel the vine its gross revenue loss and even if we take just for argument's sake at this hearing that the number of the panel devise is appropriate we can look through what the panel's findings were with respect to the award the panel  not consider attrition as it goes from year to year in two thousand and twelve the panel finds a gross up revenue loss of twenty two hundred ninety seven thousand six hundred twenty two dollars that's the same number that they used for twenty thirty where in we have attrition as a panel but ten percent over inclusions of ten percent that would reduce the number in the prior in the following year it would not stay the same and that's an evident establish what his actual revenues are isn't just looking at al logical sense if we only have a ten percent or a five percent trisha there's going to be actual revenues or see it shouldn't be my client to show that there are actual revenues received it should be the burden of the party that is claiming these last profit damages to show we don't receive any any actual revenue so wha had said ok we've got a year of or a book from two thousand and twelve that shows that we've got actual revenues received we don't have any other evidence we're just going to call it zero and again looking at logically if we have a five percent treasury the number's going to simply be reduced by the five percent this just again shows and demonstrates that the panel went above and beyond what it's authority was they wanted to come up with a last profit damages number and they did so by calculating on their oil if what we've done and i apologize for the length that it is in the brief we wanted to try and lay this  to show exactly what their methodology was and where the methodology was wrong and it took five or six pages but if we look to what the table shelves and simply what the table show gross revenue why should go down each year it should go down and be whatever the gross revenue loss from the prior year was minus the attrition and over inclusions that should be the starting point for the next year so even if we are going to say you know derby was able to establish last profit damages we're going to move into the calculation the panel even had years on its calculations what we have put forward is what the correct calculations are and we would ask that the court review those calculations and modifying correct the arbitration award as set forth in our good morning gentlemen thank you for let me have the time to come in and present this case to an honorable counsel you know quite frankly i think the court's got a pretty good handle on this case of my concerns that i was going to raise have been pretty much been raised by the court already one thing i found interesting was when you asked a question is there any other way other than to record a transcript that this case could be examined you know yet serious and counsel had an opportunity to take advantage of it now i was the the council for arbitration i've been in this case since two thousand and eleven and granted both legal counsel and all both parties agreed not to create a record agreed not to have a court reporter  would we all understood this arbitration was going to be final and that's the way we proceeded that we all know how limited judicial review is of an arbitration award and there was really no point in a record however trial counsel was discharged this appeal was filed and then the notices from triple a can start coming in about destroying the records all these were ignored the records were destroyed the notes were destroyed the exhibits are gone all of this could have been preserved and given to you a by standers report could have been asked from each of the arbitrators a one could have been given from trial counsel we could have gotten them from witnesses we could have recreated a record if anybody was really serious about it if they had really wanted you to see all of the core exhibits in the core of information that came in it could have corrected all of the mistakes in fact that i feel have occurred in some of the interpretations of the thirty page order that the pan obviously these three panelists gave a lot of thought and a lot of effort conducted a full week long trial looked at thousands of pages of exhibits you know cross examined over one thousand different witnesses and presented a reasoned opinion as the court has said mr tallman doesn't like that decision we don't like parts of that decision either i don't like the fact that they get interest and we we calculate to result in one hundred thousand dollars in damages and factor b which results in one hundred fifty thousand dollars worth of damages for a combined total of not two hundred fifty thousand four you had seven and eight you get twelve this isn't a case where they put a comma in the wrong position and they obviously made a mistake or they if they wrote down will apply five percent but then when they did the calculation put in fifty percent this isn't like that this is a situation where they are claiming ok you should have used a different formula in your calculations you should've apply this factory and taken this factor out and taken this factor and moved it over here those aren't that's not what the law provides the law provides that if i say ok janet you get the property on front street and go you get the property on but yet it's clear from the legal descriptions that were attached that we somehow switched them when we did it in a simple error will you fix that because you know the idea is to do justice to the arbitration process in the award not to strip it and say without any evidence that that you guys didn't do it right they're trying to claim that you didn't do this right then in to get into all those arguments i've got to get into things like attrition rates growth rates we haven't even discussed growth rates of this accounting for this was a growing thriving accounted for and you're and you have to balance the growth rate against the attrition rate in the two experts disagree numb with the attrition rates are in the amortization rates and in how things should be carried forward they want to tell you that we only had one expert we had to we had me haul and who we turned into our own expert at trial and then we had europe and then we had a whole roomful of experts because half the people that testified were accountants and testified to these issues of what was going on and they may not all be reflected in the final judgment but practically everybody in that room other than the handful of late witnesses was an expert in this area that came in and testified and educated the panel on all of these issues there's no when it takes five pages to explain applied you know is provided for so that if somebody makes an open obvious error it can be fixed that way it should be fixed you know what i mean not so that somebody can take four years five years of work a week's worth the trial thousands of exhibits and you know untold testimony pages and then turn around and rearrange it recalculated and redo it because somebody doesn't like the result i might not like part of these results he might not that we can't change it now all we can do is say whoops somebody made a mistake can we fix that and i don't think that exists or i don't think there i mean i don't know if that answers your question on the subject but to me this case can't even be considered seriously without a record on the appeal and i don't know why some sort of record wasn't given t when they have the ability to do they might not get a transcript but they have the ability to produce the exhibits and they have the ability to produce bystander reports and ability to help create a record and i can only assume that by not giving it to you they didn't want you to have and i believe that the reason they didn't want you to have it is because that obviously this whole transcript and record of this entire appeal would have shown that it was  hotly contested case it was very carefully considered that every argument that was presented was heard every exhibit that was tendered was received every witness that was proposed was cross examined and interview and everything that we gave these people was considered and then they gave us their decision and i guess the only question and as to the issue of attorney fees i don't i mean we've got an integrated business agreement which provides that the successful party can receive attorney fees we got a monetary judgment obviously a judge can interpret that as a species successful party a school going in and collecting that is still part of the same proceeding that should be entitled to the attorney fees as we should get our attorney fees for this appeal and i don't even know where the problem court of jurisdiction is for that but i do feel that under the integrated business agreement  we have had to come in here and defend as we came into defended the motion of a case which i felt was frivolous i feel this appeal is frivolous i understand why they're doing it it's a lot of money i understand it's hotly contested but if they wish to provide into this and if we are the successful party i think they should bear the attorney fees and that was the original intent of both parties when they entered into the supreme and i think that should be honored by the courts as it was honored by the thank you judge to touch on what hosing council said to request a bystander's report from the arbitration panel likely would not go very far the arbitration award itself goes to great lengths to discuss what evidence was presented their interpretation of that evidence even go through and explain what witnesses that testified in what their state pardon me what their statements  had indicated there is there's something to be said with the fact that the handle i had indicated what juror b did not provide judge i'm glad you brought that up the at the other expert was actually our expert the only independent expert that testified in the case i guess i mean i'm not even sure that i can ask that because it's outside the record it sounds like is there any indication in the record that there was a nother expert that presented testimony that perhaps would have provided the basis for the arbitration panel's award no judge and i think that if you look into the if we put for the next word we don't have to establish virtually anything other than the fact that there were no loss profit damages and i believe that when you read through the arbitration decision you see that the pan with respect to it and judge i answer your question i apologize i get going sometimes i don't think it's an answer or question frankly so i think i'll withdraw the question o so judge with respect to a question that was posed earlier the contract sets forth what the law is to be applied to the arbitration and the hannele in disregarding illinois law committed gross here we have satellites what the burns were on each part and the alley did not meet bird the animal did not have the ability to pursue its illinois law to exceed their powers you know what the law is they can apply the law they can render a decision from there however if the of poly and that need is burden and real an oil law they should not receive loss profit damages in the event they are able to establish lost profits albeit without reasonable certainty the most that can be given to them is nominal damages that's two fronts where the burden was excused by the panel of the belly and somewhere in those experts no it was on the it was the burden of the of l e to establish what those calculations were and they failed to do so as articulated in the tracing or so for that we were an asset t