so if you get a little long winded you're unlikely to see the red light and will try to give you as much time to articulate your arguments without excessive interruption but we do like to know so please and a trial court that turned its head when that albatross in pals excessive exercise of power came into question simply put this appeal is about an arbitration run amok a panel that ignore jurisdictional limitations and basic principles of contract law when the question is why didn't you do some form of objection your honor we actually did object after the case is over problem here because there were allegations made in the initial demand they have talked about  change order costs them impact claims and production claims for there are so contractors in the initial demand and then they made it more clear that there were i think eighteen million dollars pretty specific in the second demand and there was no response in terms of an answer or affirmative defense indicating a problem with jurisdiction there so that's sort of what we're struggling right in and  but that's not what happened in this arbitration the sub contractors brought the claims in fact six of contractors presented witnesses cross examined witnesses engaged experts who provided reports with your would not have been a parade a sub contractors and the council coming in to the average duration and presenting these claims furthermore the problem not only with the mere presence by the sub contractors and acting as if they were parties instead the mere subterfuge that has been placed in front of us that states they were additional counsel for however is that the claims under illinois law if you're going to bring what it would it stating is you have to have some sort of agreement between the general contract and the sub contractor so that the at the end of the trial the sub contractor knows what it's going to be receiving it might be a percentage it might be whatever the owner gets for the sub contractors claims that are presented as i would have the contractor get i guess the owner for whatever claims the contractor is presenting them half the sub contractor can use simple as that trust against them all and as i said that the sub contractors still have claims for breach of contract against happen which is not what has happened in any of the cases that have been cited in the brief you know we can fairly feel that the passion coming through in your briefs and certainly here today no problem which pressing there but i guess what we would look for in the record is some evidence of the that happy was going to proceed in the manner it was going to proceed and in the arbitration the language of objection was that paula vigorously of jack's says i mean you could have done more than right here on it we felt it was a fast position to move forward with the average ration state abjection and argue the case in addition it's clear that the arbitrators realize that in addition to the arbitrator's exceeding their jurisdictional limits the arbitrator's also committed gross errors of fact and law on the face of the award when it made warded the sub contractors that would allow the subcontractors the award of their subcontractor fees in addition the sub contractors were not made the prevailing  of fact and law by awarding the subcontractors their attorneys fees in addition the other cheaters continued with this excessive use of power when attempting to rewrite the general contract and add the word expenses to the prevailing party attorney's fees clause what ada warded helper and the sub contractors it's expert expenses illinois law is clear expert expenses are something archers traders also committed gross errors of fact in law on the face of the award when they awarded travel expenses for the first out of state counsel now look happier is read to choose whatever attorney it wants to choose that it's not pomalyst argument however in a city like chicago when there are plenty of qualified construction attorneys there is no reason for copper to go out of the city or the situation that we have to pay for the travel expenses of their out of state council when there are plenty of qualified construction lawyers in the city of chicago how much is there one that's  hundred and sixty six thousand dollars thirty she would like to discuss with you this morning is that the court abused its discretion in a pending rule three o four a language the confirmation order because of the manner in which the arbitration proceeded and because there are it did not dismiss account no litigation has been resolved however is still continuing to bring claims against tom all the subs are still bringing claims against have or and the subs are claiming they are not bound by the  million dollars judgment is final when all of these issues remain open it's also important to note that even the liquidity agreement itself states that that charges and any other open issues between the general contractor and  dealt with at a later date so those issues on the face of the liquid in green men remain open but yet the trial court simply ignored the fact that these issues with the subcontractors remain open and simply wanted to  certification from the trial court even before the conclusion of this appeal this is not sufficient nor does it promote judicial a condiment because the order is not final there's further questions i have one but you can answer it when you come back up i want to give you time to look at it in your reply brief page to you indicate you know there's no question that the hell does that have jurisdiction over the sub facts about the arbitration that tend to be overlooked but i think the very important to remember in the context of the current people the arbitration was pursuant to a crowd based a i a type arbitration clause or claims arising out of or relating  to the extent that that clause informs the arbitrators jurisdiction they had jurisdiction to hear anything between pepper and kamaal if as it relates to this contract second this was an experience panel of highly qualified arbitrators you get that from the c v materials that are included in this record as well as reading any of the multiple decisions that they made which are also part of this record they made detailed work and they wrote detailed opinions dismissing on the very grounds for as to support the appeal and lastly there is no allegation of any arbitrator misconduct of any kind with regard to the server tracing the standard of review which hasn't been mentioned i believe the illinois supreme court has said that wherever possible court should construe arbitration awards so as to uphold their validity i believe that a motion to vacate can be granted only in extraordinary circumstances and only where there is clear strong and convincing evidence i believe that all presumptions are to be resolved in favor of confirmation of the award and i also think and i think this was conceded by the tenor of the argument that even the stakes in judgment or fact or law made by the arbitrators will not be the grounds for vacating an arbitration i think with regard to the procedure for how the subs participated the parable got it right and proceeded in accordance with the way these cases are handled not only generally in illinois but all across the country and i was blessed by united states versus blair by the supreme court united states but the grounds as it relates to waiver are so striking in this case that i'd like to address the waiver argument first there really three standards that are  and an arbitration case and in this one in particular states standard which is any objection to jurisdiction and that arbitration must be may quote at the earliest possible moment  and then just if we're not sure whether those standards will suffice there's rule thirty eight that said if one proceed with arbitration with knowledge of a violation of any rule he waives any objection to that violation it appears to be late but he did file yes they concede mr justice that at the very latest they knew exactly how the arbitration hearing would lengthy letter to the arbitrator's addressing in part how the hearing would be conducted relative to the subcontractor crossed over it is in this letter because they can see now january of two thousand and eight so it's in this letter the problem of must start that it objected to the jurisdiction of the arbitrators they have to argue that letter because it comes after knowledge we all know how to make an objection based on jurisdiction there is not one word in that letter or anywhere in this record until after seventy seven days of hearings to anything that says we object to the jurisdiction of the arbitrators to decide anything it's not in that letter and in fact in the letter the very letter that they're relying on they concede jurisdiction page six of the letter here's what palmolive says it was our understanding this is what they say should be the case it was our understanding that as part of peppers claims pepper would be presenting the claims of various passthrough subcontractors that's exactly what we did arbitration that's exactly in the letter what they say should have happened that's exactly what did and then palmolive says in contrast to what they argued now palmolive does not dispute that pepper is entitle to present passthrough claims that's what they say again nowhere in the letter does it state or intimate that jurisdiction it is not proper in the part on the part of the frankly if they had raised any objection to jurisdiction we would have been in court immediately why would we proceed ever with an arbitration for ninety days of hearings if there was even a hint of an objection to jurisdiction arbitrators and this is an interesting appellate issue i must concede the arbitrators reviewed the facts that related to the issue of waiver in detail and the arbitrators found i believe as a matter of fact that there was a waiver of the jurisdiction argument in fact addressing that very letter it said they said th that it quote objected to the involvement of the past through sub contractors in this proceed by its letter to the parent dated february twelfth twenty eight or february twelfth two thousand  concerns about the hearing proceedings and the matter in which pepper intended to present pastor claims but what's your position and our standard are you and that decision of the panel i believe that with regard t i believe that the fact of the waiver is something that the arbitrators were entitled to make a determination of the reason i said it's kind of a funny question is that when we get to the level of judge herships who were also examine the record she made the same find she also said as a matter in addition to the law she also said as a matter of fact there's been a waiver here i think i have read the cases i really don't know what the standard for review of her decision right here in this in the sense as an appeal but for the first three votes of the arbitrators i think the panel is bound by their findings as a matter of fact of waiver and it's very clear that they found as a matter of fact that was way down one of the things that i'm always worried about if i have a waiver argument is that someone thinks that i'm afraid to argue the merits of the objection itself and of course we're not  me be clear as exactly how this was handled that arbitration because i've heard a lot of characterization and opinions about the sub contractors being parties to the arbitration they were not parties to the arbitration it was rule from the outset that they would not be parties to the arbitration there is no relief requested for the sub contractors there in fact is no relief provided in the award for the sub contractors this was an arbitration between palmolive and between pepper and it was intended to decide all contractual issues related to that controversy and it did the only question is whether packer was intitled to pass through costs that it incurred through the work of some contractors and united states versus blair says that's exactly that and that's what we did they did not participate as a party there was an objection you know you see in the papers the promise is what we should have made application for these sub contractors to be a party and we did know we shouldn't have they were not parties we didn't make it out because for them to be a party and in fact in the record palmolive objected that they should not be a party and everyone agreed with that to the extent the pub model of objective the arbitrator's heard and decided that objection in palm olive's favor they did not participate as parties either as permitted to participate in the hearings to present their past their claims using their own legal counsel witnesses evidence and expert witnesses were necessary this is the most efficient and cost effective method to presentation to the mutual benefit of the parties and does not create any prejudice the panel's order establishing the hearing procedure clearly establishes that the sub contractors are not separate parties to the arbitration and that their legal counsel to the extent of their participation in the hearings are simply serving as co counsel to pepper for the limited purpose of assisting pepper with the presentation of the sub contractors past their claims and for almost an almost exactly the same i will add one other thing about this at arbitration and at the court below how model of conceded that from the outset throughout arbitration passion control of the subs from this and other cases but that frankly ignores the fact that both under player and under passion it doesn't make any difference what that agreement says there doesn't need to be any agree all that agreement is between pepper and the subs that agreement relates to how those parties relate to one another both before arbitration and if they can ever collect the thirty five million dollar judgment palmolive is not a party to that agreement the rec league or otherwise under that agreement there's nothing in that agreement that regulates pump pump i was rights under passion which both parties agree apply the agreement means nothing there doesn't and i would suggest that they are entitled to their counsel and their choice of counsel and then the question becomes whether the award of that part of the f is an abuse of discretion or a gross error by the arbitrators and that really comes down to what the agreement said about that and what the arbitrators jurisdiction was as it relates to two costs and attorney's fees the contract says that the prevailing party shall be awarded costs an attorney's fees we decided at the beginning of the i will concede because we conceded to the arbitrators that i don't remember whether it says reasonable cost and attorneys fees but we can see that that is the standard and we didn't claim anything that we thought was was unreasonable the arbitrators found that that was part of the expense that was anticipated contest a favorable and incurred by pepper construction and under the circumstances of this case and that provision as of should sustain those reasonably predict the cost in terms of standard or review and they have limited issue i think it's either abuse of discretion or we have to establish that they're that the errors that the arbitrators made an error of law or made an error of judgment or made an error of fact with regard to that the terminations you must affirm unless you find gross error of law or fact or some sort of arbitrator misconduct i would suggest respectfully that it has to be affirmed and i would also again perspectively caution this point about deciding all over are second guessing apparel that sat through ninety days of hearings and had  and had a chance to decide themselves whether out of county out of town council was necessary or whether the participation of the sub's council on behalf of pepper was reasonable under the circumstances or whether in a case like this expert's work costs that had to be incurred and were going to be incurred and to the extent that they had to be incurred could they be awarded i think  i think it's very tempting always and i do it all the time to second guess people out of context these arbitrators sat through ninety days hearings they did an excruciating only long amount of study they had a record of thousands and thousands of pages to review in their discretion in their best judgment this is what they thought was appropriate and i don't i don't sugarcoat the fact that this was a substantial case with a substantial war of course in attorney's fees but believe me they had their reasons and certainly this panel should committed gross error in deciding that costs as it relates to a very complex construction arbitration can encompass expert fees it's just it really comes down to whether under any circumstances almost any imaginable or reasonable not even reasonable circumstances you would consider expert fees as in  that in order to put that restriction on it you had to add a word to the contract which the contract didn't happen and so the arbitrator's assume the costs that the contract methods actually what it said costs are costs and if by our definition of cost and our application of the facts of this case we believe it's a cost then we're going to award it particularly given the stipulation that the parties already had th again outside of the outside of the context of legal lease which said this is if you talk to anybody about incurring a cost but not occurring in expense they would think you were crazy it's just it's just the use of the vernacular the arbitrator's were i believe in title to life that way as to as two three or four and i say this there was a motion already decided  by by this court to not hear the appeal at all because the three zero for a certification was inappropriate that was denied it's hard for me to believe that that motion could have been denied and then today really in the context of a motion to reconsider this patent would decide that the court below abused her discretion which she she has and including the arbitration as between palmolive and pepper as the liability stage under the contract how much money is owed in the country pepper had filed lanes and then those proceedings were stayed pending arbitration it's perfectly logical which is the substantive contract line was decided while the enforcement aspect of this litigation was state and that's exactly what happened  but i don't like to say this but every other lawyer in the case seems to the say at every juncture that no matter what happens this is going to be appealed i hate to  still have the option so i just throw that out there i can't report of settlement to an appellate court except to say no we have our own word once referred to somebody other than this hand e that well that's not i just just as an aside and frankly irrelevant that is an active x specter of this case right now also thank god again counsel your name is bruce fi even poker and the arbitration degree and they state that they don't have jurisdiction over the subcontractors claims particularly any back charges that have occurred has against the subcontractor so arbitration and that is instead of proper presenting the claims has passed through claims as damages against pall mall if the subcontractors actually presented  their claims under the contract if you look at the arbitration award it's allocated as to each sub contractor and some of those lines have things for retention or the amounts that were left over on their contract with packer or their contract balance again showing the amount left over on the contract if you look at all the cases cited by both parties in regards to cast their claims passion and interstate contracting case just which discusses seventeen jurisdictions across the country and how they have dealt with past three claims not one of them states the subcontractors can p paid and present their own claims nor does one of them state that you can proceed without some sort of agreement between the general contractor and the sub contractor that actually terminates litigation after the general contractor proceeds against the owner and so that's what's going on in those two senses and i think is is for the first statement it would be generous to call their overstatement hyperbole ok well i think i don't think pepper claims that the and nor do i think arbitrators claimed that they had jurisdiction over the sub contractors presenting their claims against copper essentially avoiding some of the property of contract rules and forcing there to be two to two trials in other words a travel to the general contractor in the subcontractor and then having the judge general contractor depending on the outcome of that first trial is to have you know that the general contracting the sub contractor agree on what should be presented to the owner well that's not what happened here there was no agreement there's if you look at that liquid in agreement that's not there and so whole public policy behind allowing the general contractor to bring claims on behalf of subcontractors didn't hurt the average ration and it hurt council talk about these ninety days of arbitration well that's ninety days i think for one reason there are eight parties present at the arbitration it wasn't just palm all there were six other attorneys and their experts making the presentations and closing arguments and being awarded damages and filing posts here in greece the fact that to say that the sub contractors were just additional counsel is a papper is just a mere subterfuge evidence by all the i can see we've made today at evans by even further by the fact that happier and subcontractors are suing each other in addition when instead of relying in illinois law they relied on the dictionary the definition costs expenses under illinois law experts fences are different than costs and that has been ruled on in illinois law and i would