apple e's these are two separate cases and then does michigan resident kata law apply when w j o'neill company has never asserted a formal claim in the arbitration proceeding against either one of the applebee's here's the problem or the concern i guess the question that i have if the near we make the issue in the i think you've accurately described a very narrow issue the sort of interesting academically if we put that aside for just a second you're asking for a redo of what was essentially forty two day arbitration proceeding or something like that where it just from a logical standpoint seems like everybody was there and you want to you want to redo  exactly the same issues that were discussed before l bet you get to the parties in a little different way the issue is raised as to a party through indemnification in the first proceeding and it would be raised directly in this proceeding but otherwise it looks like the issues are identical so what's why is that right and if it's if it is right why would you why would we want to do it again well most of the evidence would be the same but o'neill's always damages that it could have recovered and it didn't seem to me and it didn't seem to me in the briefing although i may just have missed it which is certainly possible that you ever described to us in the pleadings exactly what claim you want to make now that you couldn't make or maybe a variation of that would be same claim but now you want to make a claim for additional damages or something well that is a tort claims in there there's a breach of contract claim  and there's not there's no mechanism that is you could presumably have filed something before the arbitrator and one would think that in reality and i'll ask your colleagues they would have said we've got no approach an agreement with you you know go away but nevertheless as a matter of tactical strategizing one might have thought about it and i just wondered you know did you think about it and either say oh that's so silly goal never agree or that was there some downside some detriment to even trying to file that well there's a this is a aaa arbitration the aaa rules say look if you want to bring an arbitration demand against sub to let me follow up on that i understand in the in the initial request for arbitration whoever filed what you're pointing out may have been a limitation that would prove would have prevented that initially but once the case gets going it seems to me your claim would have your claim here would be a lot stronger had you then sought to inject these issues shall we say into the average ration that was properly filed well because in race you to a we're looking at what was brought or what could have been brought here i mean it might have some emotional appeal but again these were two separate cases that were consolidated for arbitration in the case in which o'neill was a party it was o'neal in names that you had against barton mallow were very similar were there not to the claims you would have had against the other two defendants in terms of design and problems of that nature of certain certain aspects of the claim of the design  time on your briefs and that's that really bringing these claims an arbitration is not the same from a due process standard otherwise as bringing these claims  consent and you should you should be permitted to have your day in court not your day in arbitration but you spend very little time in your briefing and that's pretty that's precisely correct as far as the briefing we didn't mean to claims there's no waiver of the constitutional right to jury trial for those claims certainly parties are free to waive their right to a jury trial through an arbitration agreement but that never occurred here in the district court recognize on to say that it could have brought those claims and should have but there are make no mistake the michigan rule of resident card is very broad and it says that once you bring a claim a formal claim against a party then you are required to bring not only that claim and if you have it doesn't apply to just that claim but any claim that you could have brought that arises out of that same transaction or occurrence but it doesn't follow from that dependent on the fact that there is no arbitration agreement between between the true that if there's an arbitration agreement put between a and b unless it specifically excludes let's say tort claims you could have end o'neill actually resisted the consolidation of the arbitration just as a procedural matter so that that's something that i think is this  using the term i think maybe both sides use the term about cross claim but if there had been a claim between them it would be there be some kind of new claim or counter claim because third party least when i woke up and that's when i when i went to law school ever of shapley both french richardson and abbott and says how we have eight minutes i'm going to call them s p i right save time i'd like to respond to some of the questions that the parents posed but before the i would like to in michigan and that is because the record the actual facts here establish that not only could o'neill who have asserted the claim said that they want to  office us this morning is the distinction between breach of contract claims and tort claims so how do how would he have injected the tort claims into the situation proceedings on the or cut it if it's true in fact that you can arbitrary tort claims in an arbitration and i would have to say i don't have any idea whether you can a course you can because that's the point of arbitration especially in the construction setting they're not limited to contract because it permitted negligent design of the cardiovascular mechanical systems and it misrepresented that the plans and specs were not to fact those are toward theories they're there are their expert testimony was not to the effect that right now breached the contract their expert testimony which by the way is not required in a breach of contract action but they brought in slew of experts das said oh poor boy these engineers these architects they had they not proceeded that they did win and the outer your specifically found that there was that there was the problem with the designs was there any limitation on the damages that you could get arising out of those tort excluded it they went on to find that o'neill didn't prove it and by the way they tried they brought in substantial evidence an expert testimony specifically directly and dramatically on  consequential damages they didn't prove their case in terms of the rate general race judicata theory in your view with the supply both ways that is if you decided to sue them now on something having to do with this this whole mess would you be precluded because you could have brought them against them in the arbitration of the counterclaim because again we have seen to it substantially day the parties and we have not even just jacket and they should have done it because all the contacts in this case required op parties to participate when you say the contracts required all parties help help me with that in the sense that they're a they're not a party to your contract with the university right no but they add are they were the sub contractor of their contract incorporated by reference barton manless contract with the university of michigan and their current tract specifically requires parties to participate if you are present in the arbitration in other words the point of these i have heard is just help me there again you're referring to the parties all parties to what the construction construction on section project i got yes if you participate in if you were involved in the construction project which there are contract relationships ok they're separate or subcontractors and you know we may not have had a direct contractual relationship with o'neill but that's irrelevant because o'neill contractually agreed to make sure that anybody involved in the claims of arbitration came to arbitration and again his own us contract with bart mallow specifically incorporated by reference the university of michigan's contract with objecting to the merits of the other party's claims i get that but were there any objections ever raised to the fact that the claims themselves were being raised they should have been in arbitration they were toward vs no now arbitration from the got go only and did not want it it's obviously they were obvious they want to split their claims and hedge their bets trying to get more money elsewhere but the bottom line is when we started in our protection when it was finally can sound they had over all their objections at that point time i think george but you put your finger on it they had no choice at that point everybody's there and everybody's participating and for them to stand here and say that there was an actual controversy between because the elements have a broad sweep they bring in a lot of claims that are barred and that basically raises did notion that sometimes you get a case where it kind of hurts the conscience to say that it applies this is the opposite even if you thought it was a close call whether the elements are met here this is a case that cries out for a ruling that it's barbarous judicata because it is exactly the same case that they're trying to redo and there's no doubt that they tried to they tried to keep this out they tried from the beginning to have a second bite at the apple by filing suit in washington county against my client and my colleagues clients which of course proves that we are adversaries and we were adversaries  arbitration and judge barnes to answer your question there's no question we would have agreed to arbitrate if they had if they had tried to arbitrate the claims against us that they had filed a formal formal paper saying we want to arbitrate this claim against you  are we would have agreed with the question is this would you have been required in my my question is under these agreements as i guess they've been described by your co counsel would you have been required to arbitrate the way these agreements apparently a corporate one another and various aspects of o'neill have brought claims against smet in the arbitration your position that you would have been required to submit to arbitrate those claims no i don't think we would have been required to do so and i could be mistaken on what the contracts say but we didn't have a contract with them with an arbitration provision and this is what they're arguing they're saying we weren't compelled to arbitrate and  i'm not sure about that i think there is if you look at the washer knox county record week in i don't i don't have their record memorized but in the in the washer not case where they sued us we were saying all along this whole thing is being arbitrated their claim as against us to the extent they have one is being arbitrated this is the subject of it this the washing off circuit case should be dismissed and they'd not going to get a second bite at the apple let down the road because they're arbitrating  arbitrating this claim as are any of those papers in this record or are they only in washington they're on this record they're on this record yes so you're basically saying even though you wouldn't have been required necessarily to do sell and  it seems to me we would be remiss in just simply relying upon somebody after the fact saying oh sure we would participate because who knows but you're saying under a student caught it even though you weren't required to participate they were at least required to seek to add that i'm seeing they have been successful may not but the absence of trying to do it is what triggers the not quite i'm saying they could have tried they could have tried and effect so i guess you're right i guess i do agree with you they could have filed absence of could have tried it's the absence of trying the triggers the dr yes that's right i mean the point is could it this what do you agree with that do you have any different take on that only in the sense that i don't know what the formal papers said in terms of this is the title of our claim being arbitrated it might have been limited to contract claims and in the papers but in matter of fact and as to how it was arbitrated they pursued their their theory from the outset was that the design was negligent the designers was negligent and this caused their damages and so as a defacto matter the tor claimed were arbitrated i can't say that they were that they were the formal papers that they filed said that that's what was being arbitrated but in fact that's what was being arbitrated and to the extent that they wanted to file a separate paper against us we've said from the very recall i think so and i have looked at those documents at some point but i don't recall seeing any indication that it was contemplate it that all of the parties participate in  arbitration i'm not sure if that's what you're suggesting i thought it was contemplated that the judge said no there's arbitration agreement between o'neill and barton mello and that needs to be arbitrated and then subsequently that went to arbitration but maybe you that w get some light on this for me tried that was the judge the trial judge as understanding at the outset and he originally dismissed part of malice in the case but then as time went by and nothing happened in the washington circuit case and the geared up in earnest in was being arbitrated day after day and the claims are being asserted against our clients the washer not judge figured out this whole thing is being arbitrated this this circuit court case should be dismissed because you're effectively pursuing your claims as against these guys in the arbitration and so that's why it was dismissed later on at the beginning though it wasn't because they want their contract was barred but is there anything that indicate that parties were thinking that claims that o'neal might yes everyone assumed that the whole thing was being arbitrated once everyone was brought in when you have them in mark barton mel abroad in her client in my client we were there prepared to arbitrate and we did and we and we defended our claims we defended our defenses their claim was that we were negligent we defended it and this is what this whole subject of the arbitration was that's what was the topic of it for many many days and this and i want to make sure i bring up this one point i really wanted to make is and i wish i would have made this in my brief and i don't know how i missed it the on the premise on the privies arguments there's a very important statement in the city of berkeley versus peterson case and this is six seventy two northwest second i'm sorry peterson versus berkeley six seventy two northwest second three fifty one defines privies to include the situation of an indemnity or an indemnity that settled law in terms of what constitutes a pretty and the reason that's important that is the case here so even if even if we were to lose on this same parties requirement clearly we weren't privy with part mellow because although we weren't a direct indemnity the whole thing was based on indemnification and that is recognized situation pretty which is why we were we were pretty mellow but the only other point i would make is and i started off by saying it's amazing how many cases there are a race you to caught as my colleagues supplemental  arbitrations and courts this is the first one i've seen i'm sure it's not the first one that exists let me ask you for a final question could they be in the arbitration as it stood could they have gotten an award against you could the arbitrator at the end of this proceeding said you know we just saw that your clients or your clients are really the bad guys here so please pay o'neill two million dollars i i  think so but it might have been in the sense of an award against spartan malou that follows all the way down to us because that's the way it was set up so it could have i don't know if they could have gotten a war directly against us   they couldn't make against barton but they could make against you because your answer to judge bugs question is well if they'd really have to make that claim they'd have to give me cover against barton and then bartlett secret cover from you  rule it's inherently unfair in unconstitutional in the operation context when you don't have a jury trial in we know that o'neill wanted to have a jury trial in fact brought these claims originally  that's not the that's not a correct statement of michigan law well they even when you know it isn't it in the absence of a contract if you were required to arbitrate then you would have been required to try to bring any claim in or lose  regardless of your jury trial rights absolutely in when these claims were originally brought the state circuit court was barton malou that was dismissed in favor of arbitration but it wasn't the other at the other two parties and it even were even if they were required to arbitrate those claims parties can waive their right to invoke an arbitration agreement through waiver if they if they don't raise the issue of arbitration timely so even if it  opposing counsel say that it's possible that the claims as they were denominated in the ever changing proceeding didn't say they were tort claims versus claims but they argue strenuously that all the to o'neill brought against burton malou in you can characterize the evidence you can characterize the arguments is being towards but the fact is the there are trees were asked to decide a breach of contract claim and they were to decide whether  t was responsible under its contract for for the the design and it's almost like you're saying there was a breach of contract claim they claim involved towards but they were only ruling on the breach of contract aspect of it so same facts same theory same everything but the cause of action would be different so we get a do over so what am i missing we were so in a different system party different party under a different legal theory and it's not the rule in think in just litigation generally that you're only allowed to bring a claim against one of many responsible parties there are multiple parties here and o'neil was severely limited both prosy really and how it presented it claims in arbitration and it was it was limited it didn't have a jury trial like it wanted and it was limited in terms of us aside from not having a jury i get that how were you severely limited in in the context of these tort claims there's the determine whether there's a such a clam though you say you had a constitutional right you're deprived of that constitutional right i get that obviously people can waive constitutional rights indeed so why is why isn't that what  essentially occurs when you enter into an agreement that provides for arbitration with one party and that and that contract incorporates other contracts that seems to be how we get to that i don't think any i don't think it's ever been