i don't know if you were in the courtroom when i made my announcement earlier in your case all which it just was please of the podium whom you represent your name and whom you represent the proceedings are being recorded so make good morning they have please the court my name is scott freight and i represent the apple and a epstein and sons international inc in this matter where here today your honors because the trial court erred is a matter of law when it granted parties to arbitrate the trial court however found that the december ninth document was in fact controlling agreement and further that there had been an agreement between the parties to arbitrate those findings evidence that committed three significant errors the trial court first aired when it found that the november ninth six document was not a legally binding enforceable agreement because it contained the word proposal or a view of the november sixth document however evidences that it is fully integrated fully binding and fully executed agreement critically the november sixth document was executed by e u s a and right above that signature line appears the words agreed a clear conscience no i think once it once it's accepted it becomes a contract it isn't or anything else without with a simply by execution of that agreement and returning the agreement agreed and accepted by it's our position that in fact that creates a binding agreement between the parties in fact if you look at the case of that we cite which is harry's first american general financial what is interesting about that case is that the corps points out that they signed a letter and above the words on that letter part of that proposal as the record evidences says that the proposal together with the terms and conditions forms a binding agreement between the parties and it defines it as the agreement furthermore the terms and conditions identify it as a fully integrated and binding agreement so while i believe the answer to the court's question is that by accepting erase acceptance agreed and accepted by that proposal it became a binding agreement as further ind of the fact that it's an agreement are the terms and conditions and what the terms and conditions express moving on and i think i just described as far as what the terms and conditions set forth in the document evidence that in fact as i said it was an agreement either way claims that these terms and conditions are not admissible and are strings of evidence that argues that the terms and conditions should be first they are the terms and conditions should be ignored they argue that there is no evidence that they assented to them however this is belied by the fact that they included these terms and conditions and this letter in the arbitration demand in the underlying arbitration and again the terms and conditions provide that there are roughly a part of the november sixth proposal and where the trial court went wrong was it focused on the word proposal and as we point out it's well settled that the legal a fact of an is clearly admissible therefore because there's a question of fact as to what this december ninth document is the trial court was clearly an error when he granted summary judgment on this point the finally are committed by the tr forty one relating to the manner in which epstein was to perform its engineering services this would have to get with it it is possible that it could be an ambiguity it is part we do set forth in our papers and we do to be arbitration agreement was not attached well first i would take exception to whether or not it was incorporated our our primary argument is our belief that in fact the way that incorporation language is writ it's written in a fashion so that only requirements an arbitration isn't a requirement of service by going to the question that was just posed by the court you are correct if this court were to say well there's two reasonable readings one is even cooperative the entire thing into the agreement by reference or alternatively it only applied to requirements then in fact courts which have considered that very question have said where there is not a clear and unequivocal statement regarding the intention of the parties to be bound by a dispute resolution provision such as an arbitration provision that provision is not considered part of the agreement so we would agree we believe that they are we believe that our interpretation of that language is clear we believe that these stachel body of case law supports our position the treatises support our position that the word requirements has these very particular meaning particularly in the construction context and we cite cases from the supreme court on down we cite illinois cases use that versus generis we cite numerous cases which are not distinguished in any real way b again to your question it is true that it could be subject to interpretation and if in fact it is then the law says that has to be construed against the drafter and if in st against the draft of the draft of the december ninth document was either way and therefore under under those cases which we cited turner construction versus the midwest curtain wall and also out of state court case impact constructors versus superior concrete out of indiana that ambiguity would render that provision oh un force so i see my time's about our favor i believe it's a record that judge martin had before him and that this court has before it really demonstrates that under the uniform arbitration i judge martin made the right decision in ordering the parties  attached to that arbitration demand was the architect consultant agreement that was signed and executed by both parties architect consultant agreement as counsel for what we call the engineer epstein argued the trial court there is no ambiguity contained in this architect consult agreement they argued before judge martin that the plain and unambiguous language of the architect consult agreement if it does apply this i provide for arbitration of disputes and you just heard counsel talk about he thinks requirements means one thing and i know that your honor mention that requires maybe an ambiguous term we don't believe it is based on the language incorporating the documents he won forty one in its entirety and maybe could stop there might be a that section five slash two e of the uniform arbitration act renders that sort of discussion irrelevant for purposes of determining whether there's been a sufficient showing of this case however the parties went further and executed a subsequent document  you are free to construe that as a contract if you find that the elements required for contract formation exist however that is not agreement percent which we are seeking arbitration of the parties in fact execute a subsequent agreement so you within a certain time schedule and submitted that in response to our request for proposal i think the course of dealings between these two parties evidence is the fact that when those proposals were issued by quite to not have a contract with the owner of the project so absent having a contract with your project we obviously could not have gone to the next step and from my reading of the transcript the court below treated as a full  i am taking a position or that the trial court need not have gotten into that issue and even if the court did find that november proposals which there were three of them and even assuming the terms that record cites for twenty one thru four twenty six a civil engineering services proposal record site for zero seven through four twelve there's a civil engineering proposal that's also signed and then from four to twelve through are signed separately and there are terms and conditions that were included in that package although not referenced in the the body of any of the proposals or positions that that's not sufficient to incorporate by reference those terms and conditions or bind my client there are elements of contract formation contained in that document however given the course adjoins between the parties in other words the subsequent modifications to those terms and the subsequent execution of a an agreement call not a proposal but an architect consultant material issue i don't believe that it's relative relevant to the issue that was before the trial court it may be an issue in the other direction because on the uniform arbitration act the burden is on the agreement in writing executed by both parties and that is why it's yet it's the news that it's yet to be determined what was the intent of these articles that what we what were they really agreeing to require i'm not a member confused as to why the court please that there was no agreement as to intent there was an initial proposals even if you assume that that form the contract they were terms and conditions attached to the november proposals that allowed for subsequent modification subsequent modification has substantial and different terms including the requirement that the engineer indemnified the architect that the engineer obtain a million dollar professional liability insurance policy changing in the billing fairly the parties acknowledge that there were proposals and services set forth in those proposals when they execute this architect and sold the grahams because they adopted those proposals by reference so i think that the intent as going from the plane on a big use language of out that the parties are essentially afraid that the november sixth proposal vote on home is indeed a conference and i think had the trial court been informed that this summary judgment motion thank you and as i think you just pointed out justice harris the position that was taken at the trial court of the position that was set forth here in today's arguments are diametrically opposed we believe that the november sixth documents is an agreement between the parties we alleged in the complaint that this december sixth not november december ninth document was in fact a ministerial act it was not a binding agreement we don't get to a question of whether or not we put forward to an  this dispute the issue under the uniform arbitration act is that under section two we're entitled to file a petition and we don't believe there's an agreement to arbitrate we don't believe that there is an agreement to arbitrate as you point out justice harrison the fact of the matter is the trial court should have not granted summary judgment with respect to whether or not the november sixth document was and in fact is a binding agreement you heard counsel outlined fact after fact after fact question we never got into discovery you heard  him mention issues of the conduct of the pardons and the intent of the pardons and again i go back to the fact that our complaint which is the only pleading in this matter other than the briefs contains general denials of the allegations a provision allowing for modification by written documentation the question of whether what that december sixth one thought you meant is as a question of fact could that be a modification it could be we dispute that it is but what we asked t trial court to find in it was the purpose of our our our petition under section two the uniform arbitration after was that to assume the predicate to your question which is that that is a modification a valid binding modification to between the parties then is there in fact an agreement to arbitrate that's when we get to that next level that next question and where we put forward in our position in our papers and on our motion for partial summary judgment is that the language that is referenced in that agreement is does not require arbitration does not bind us to that arbitration provision we also argue is justice has pointed out earlier that it is possible to read in two ways in which case it's a big u s and if it's ambiguous it's construed against the drafter and falls off the point is that we are being we we were being proud of a demand for us to participate in arbitration was made on it they absolutely don't believe there's an agreement to arbitrate our only source of relief is under section two to the uniform arbitration act and we proceeded in that manner we believe the trial court erred in one finding that the november sixth auction was a proposal and not binding on the parties and second that there was in fact an agreements arbitrating for those reasons and the reason set forth in our plan are briefs we would ask that this court reverse the trial court thank you