mercy homes are a fact of life with us and society they exist to provide shelter and cater to those among us military by age or some other infirmity usually for profit sent in to the levels of care provided in nursing homes or can be directly correlated with the residents of military pay for services which are required twenty four hours a day seven days a week without adequate rail authority oversight the danger of harm from the black existed that allows for you we are of the important rights granted in the nursing home care act the most important which i believe is the guarantee to a constitutional right of trial by jur terms and i think the law is clear that you have to have you have to define what what is be the arbitrary what is being given up and then there's no definition in this case the claim here because there is a valid arbitration group both are clearly firmly of defense and third district so has declared clearly that if you're going to respect a reaction that needs to be done by way of an affirmative  they responded discovery was represented by the defense defendant's counsel a walk out of the deposition had to be ordered to come back to completed so little there was some fairly extensive discovery so my point is there was this voluntary mr miller you may respond good morning and may please the court and kevin miller i represent residential alternatives in this matter and of course the case revolves around issues related to the orma tray should agreement found in a nursing home care contract this is one of three cases pending before you tell a court third district on this and your related or involved issues that is arbitration agreements in nursing home care contractors you may recall that we argued in january did amcor versus colonial acres case and currently in a briefing schedule we have courteau versus aligning manners i say that just to reach this conclusion your decision in this case obviously isn't working to the litigants here but as one of at consideration to bind the parties to an agreement here we have an unusual coming in to arbitrate if the nursing home were just pleased with the residents maybe the payment schedule was behind maybe the rich property damage caused could we come into court agreement which is sufficient consideration for the contract and most importantly though i think like my own mr carter who wants to focus on only the first paragraph of this sort of attrition agreement i'm not quite as willing to overlook the second paragraph when it talks about referencing a contract i believe justice right asked that question of counsel before and he said that the arbitration agreement does not refer to the contract i respectfully disagree if we look at the second paragraph it is found on in the record in c one fifty seven it reads as follows now the standing of parties intends to submit any controversy or claim arising out of a relating this agreement or any other document signed or initialed in connection with this agreement and the nickels i want you to refer to other terms clearly there is reference does reference the seven page nursing home care contract yes this is correct but it is undisputed we see in a public statement of facts that the two agreements were  come up one other time before a little bit in context here the argument before the court here is that there is a waiver for failure to raise as an affirmative defense in the initial pleading the arbitration agreement and  decision in carter versus s s e oden from the appellate court fifth district was the only if you dish will decision on the issue of whether that contract ready could be enforced or not and it clearly stated it could not be we did not have an  forcible right until may ninth two thousand and nine when the second district case the fosler version of midwest here was published and within twenty two days of the publication of that decision we hospital holding medical malpractise reform one concert i suspect there were hundreds it's a fair number i'm sure of medical malpractise cases pending at that time and unfair application here don't somebody has to raise the issue not all of this do but once the issue is raised we all enjoy the benefits of your pronouncements and pronouncements of illinois supreme court to hold otherwise would mean that we've got hundreds of cases under the medical malpractise reform act which is unconstitutional but we're not going to recognize that because they didn't also file forma defenses that's not a result we want a new pilot a course like yourself or the illinois supreme court comes down with the decision that's one we rented and that's when rights for us and that's the case whether or not affirmative defenses have been filed in other cases or not your decisions apply clearly even handedly across the board not not only even handedly depending on whether one filed an affirmative defense or justice or also pointed out that the american arbitration socialisation rules really deal with the issue anyway and that is participation in litigation should not be considered as a waiver of the right to arbitra court that he there was a ruling by the second district court subsequent decision by the supreme court we there was no right to arbitration because it was prohibited by the year which is true well that's the case they forced into marriage contract on somebody they knew there was a matter of public policy it was void and from the beginning you know my whole point is that i mean if they're going to now pointing to this court that the reason we didn't do procedurally what we're required to do which is filing from the defense in a timely fashion i find that it's it doesn't come together logically vig they obviously intended to preclude a jury trial which was mandated time what does that mean there is no other specific into relationship more importantly to me there's no specific reference in the underlying contract for the arbitration agreement and finally most importantly there's absolutely no consideration there is as we cited i believe the only concrete decision of two thousand and ten and several other hella physicians clearly say that merely because the  to determine is there's nothing in this record that establishes a matter of law nursing home in this case is subject to interstate commerce and that's also basic requirement for federal arbitration to be close again so burgeoning governmental intrusion into everything we do and i'm sure that's going to continue however if i could argue that anything's a matter of interstate commerce let's talk about the assume that everything is going to be involved in interstate commerce if in fact that's the case that's a matter of proof for the courts to determine i think that would be an incorrect policy otherwise we turn we just turn o record would reflect neither way at the moment i don't i don't believe the only thing i can add to the court's illumination on that is that the contract a seven page contract delineates all kinds of