next case is case number four there sixteen desert zero seven zero nine order of education of like an elementary school district number twenty seven versus imams engineering also could have your parents fully participating number of the panel deciding this case is unable to attend oral arguments today due to a death in the family but no and all of a recording of the proceedings today will be available to him we'll be that's built into this case and that's the only uniform arbitration and meantime there's a written agreement in the contract that requires arbitration that statute applies i think is you'll see in our discussions today there whether they coexist or whether they're obvious on their face the fact the matter is that statutory interpretation and as a substantive law the court would always review that you know stand now goes to the question of visitor an agreement to arbitrate ok and that's clearly for the court case laws have been definitive in that when you read the uniform arbitration act you know it says if the court finds a written agreement arbitrary and we  so procedural is for an arbitrator in the courts of look at this over the years and said this is best suited for an arbitrator political you know we're going to use the arbitrators custom and practice is experience in these situations and there are several cases that we quot will twist here in the sense that the course also have to decide condition proceedings because in a sense the condition preceding to arbitrate such as in this case mediation is really more of a legal issue from the standpoint is there a true written agreement dartrey so the conditions proceed in such as the mediation of the sushi war and some of the other cases that the court looks at is there some sort of trigger that makes to the condition proceeding and in the eye of this case but i mean seems to want to ignore the issue between substantive versus seadrill arbitron billing in the sense that the but because this is condition proceed situation that didn't occur that court had the authority to look at the condition to see the see if the mediation itself was triggered or we did or something along those lines to get past this first step to say that we can now proceed now where the problem became was is that you know we had this is the mediation demand in the court look at the court actually said the we start speaking about the fact that who's right or who's obligation was it to see underneath the arbitration provision or the mediation or how did waiver interplay with the different parties you know and that's the situation t mishmash what went on for several years i think is what put the case in a posture where we were still arguing about whether it was a stay or effective timeliness or the good summary of where the confusion arose and again you know at this point in time the board is arguing that that should be for the arbitrator to review you know how did parties interplay who did what when and where and how this is an  you know if it went to an arbitration or arbitrator cited that it was an issue that could be arbitrated then we go through that process but you know under the stay that was issued the court is still happy overall already to review that you know should someone challenge arbitration now the court you know i believe was trying to sort through these issues and it seemed like he was headed in the right direction and then the folks got us and we ended up in this procedural issue his order came out and said you know i'm sorry the court found there was an expression of traction when it looked at it and they said uniform trey shanab you know currently there is no transcript that but you know the result of the matter is the court ordered a sta and said let's go to arbitration mediation is a discussion about whether that order is an order compelling or whether it's just a suggestion but i don't believe that's an issue here other than the sense that the court recognized have the status quo that states they action here but the whole issue on hold while the parties went through this process now fast forward to two thousand and sixteen and again there's no dispute i believe that uniform arbitration act brief that we argue that some of the issues is that the highlands argues that you know this was a new legal theory but our discussion is that it was before the court you know there was discussion in the court and by both times and the board situation was so probably worse than some other situations of course seen as far as the date and timing about when the actual issued new legal theory was raised in a motion for  very end of this case you know parties were aware of it you know and spent court's recent ruling that the trust ality you know doesn't exactly care for the motions for reconsider but i believe there's a distinction  here in the sense that this was underlying and that it was proper before the court and again if the court does find a forger the policy reasons behind it maintaining its whole think the courts recognize that to some extent you know if if if we don't have this as does this allow the parties to manipulate process somehow and be in the courts rather than down with an arbitrator sorting through these issues so think the cases fairly clear to the court that we need to get into this type of contractual in age a new macartney our county cases is that hand is that that is for an arbitrator to review kind of compartment here that you know we're starting off this process and you know we're we were pretty confident that mediation had been demanded and even as the trial court looked at it they said it was that made it but then process the wheels fall off the train after that so it will be important in this discussion to use the idea the timing of the mediation there's the issues regarding to demands you know what timing is or you know who contract does say is mediation doesn't occur then it shall be subject to arbitration so you know again this is something that i believe an arbitrator would have to look at see the mechanics of what happened here the mediation get waived something happened that way or where did we go from there so turning to the issues of genuine issues of material fact this case the board the board has indicated that in its brief that you know attaching a few pieces of paper to the back is leaving would not be sufficient to withstand the fact that there might be a contested issue the board said in its reply issues before and so with the demand being made you know what is the requirement for two six nineteen and if we quoted number if we think it's higher than just you know well but i believe in the reply green we raised that issue in respectable what it was that the court i will leave you know over that direction but you know from the perspective of what what the mediation no demand for arbitration handy at this time it's i think it's a remarkable set of facts that we have a contract that was entered in two thousand  we're talking about allegations of design tracked so clearly the breach had to a n t dated may two thousand fo d i thought that was pretty clear in terms of bringing that matter to the court and then we get to the situation here where the board again is an assigned me of him elves or to claim here and it's a remarkable set of circumstances well because i've never had a case in thirty eight years of practicing law where i didn't hear from the other side or even after the initial pleadings for seven and a half to eight years not a phone call not help not a plea i had to go down basement try to find the file when the board suddenly appeared i don't know where after eight years and so we're now we're the acid name and we're going to pursue this because we've made our settlement with the a condition creasy and it's very clear from the facts that the claim that to some m l a made a demand for me and then simply abandon that process doesn't provide for any other party to the mediation other than my client and m m f when the attorney for m l approached will said i was bored to be including mediation i said sure as long as you got some contractors in there too because we  i don't know they could well i guess they could renew their request i want to i want help with the process one side of you know there should have been said or should they have said for whatever reason we've not been i'm saying is that what would occur in the natural process frankly i think in the natural processes that i did waive mediation as my thoughts are just if you did i'm asking about the process where for whatever reason it was not or attrition and now we have it that's thirteen years later from two thousand and four and sixteen years later seventeen years later from the date of the  sixteen years later on the date of the contract and i think that's prejudicial terms of timing in terms of being able to in any way defend we get to the circuit court in logan county and i which such a cause of action could be brought pursuant to the statue of limitations applicable in the state and certainly ten years have passed so there's no go to mediation at that point t back quite frankly that response that i made to what i certainly consider a hypothetical question by judge folk circuit court judge about what what would do the american operation say under these these court's decision to make the decision and then the board in reaction that didn't argue to the court said but judge you should hold off that making any decision because we have in o they did do that that instead they argued and i got part of the transcript here what the board argued is that somehow some way that their initial demand for mediation me into a both a demand for mediation and arbitration the court rejected that notion because it looked at the application for the mediation it said the application is for mediation it didn't terms of making a determination and to do to defer to arbitrate or instead the board said maybe a decision and i've also argued waiver as the able counsel for the board has indicated waiver is an issue it says is a or issue a procedural matters for an arbitrator decide but they didn't ask for the the core to defer to an arbitrator with regard to the issue waiver what essentially occurred here of course is that the board asked was participated fully in the court proceedings asked the court to make a determination and only when the court decision to decide to go back and say oh well the court didn't have authority after all to make that decision i submit that that's not appropriate i think the case law by priss it now judge folk could have at the motion for reconsideration exercise his discretion and allow the board to bring up armored ability at the motion for reconsideration that's certainly within his authority but he chose not to he indicated that the the board didn't give any explanation at all why the issue arbor debility had not been brought up at the motion to dismiss and exercises discretion and i believe that pursuant to the case law that that's the standard here of review that to determine whether judge poe abused his discretion problem with that for the board is that the board did provide an explanation we can't go back and say well judge  was wrong about his decision in light of the explanation that the board gave for not bring it up our ability at the motion to dismiss hearing the board didn't provide any explanation for it and in light of that i don't see how reviewing court could determine the judge folks decision is somehow an abuse of discretion my usually an abuse of discretion standard that has to it indicates that somehow judge poe didn't rule on the motion to strike because i put in a motion to strike on any allegations or berman's having to do with our ability the motion for reconsideration but i think that matter is moot i think it was all merged into the motion to do in the order to swiss because the court found not once but really three times that the boards simply didn't bring up the issue of our ability and should not be able to bring it up here i don't think there's any overwriting policy decision here indeed i think there are very good arguments to be made about the notion of our billet here but i don't think i should have to make them because i purpose of it is for the courtroom we consider something that it already determined and had been placed before is an issue clearly clearly there was no issue brought forth to the court to going to that area beyond that is a i would point also that the notion of what the breach consisted of i think i touched before in terms of where the breach occurred the board's never suggested any date other than the one i selected or indicated should be the certainly the data breach what they argued instead was well we we think the brief should be when we got finished try to fix the alleged problem well that's not what the los provide the laws clearly provide that a breach of this nature occurs when a contract determined and so will we have those e mails that never was a poor objected to in fact what was placed in response to those of our morning e mail some correspondence by the board again not verified not supported by affidavit and the board was standing there just as i was in front of judge file asking for a decision and once the judge front gave us that decision i don't think it's appropriate again for the board to be able to say well now we don't like his decision let's go back and find all things that we did complain about we didn't object to and somehow say that we get another by the apple a our response i don't believe it's for the court to make that decision again because what was the interplay of the parties that were behind what was going on where the man attributed the fact that there was no mediation when you read the contract it just says that mediation does not resolve the issue it shall be subject to mediation there was no mediation so early the problem didn't get result so arbitration would be the  talk about this hypothetical situation i mean we can argue type better we can argue with this but apparently the judge would like it when he made his decision he went forward with this he took the extra step outside whether mediation was just at that point that was a dog legation almost at some point in time that somebody should raise the issue and i understand there was no communications apparently between them m l a hymens her period of time but by that same