court's decision tonight a motion to compel arbitration of the dispute between mr force from mr jones to controlling members of an illinois limited liability company the dispute is the court knows is over the validity of an l l c membership assignment in which mr false from sold his interest to mr jones and whether that dispute the validity of  agreement falls within the scope of the arbitration clause it's contained in the l l c operating agreement that the parties signed when this l l c was originally formed some almost six years ago so there's really two narrow issues before this court is there an arbitration agreement between the parties and secondly is that arbitration agreement agreement an that governs this dispute the answer to both findings with regard to the motion to compel arbitration so the question before this court is whether the trial course decision was based purely on it even when our assess from the undisputed facts if the court reaches that submit to the court that it is a noble for the very reason that there were no factual findings by the court and the records of course that there are several brief points if i may make on the standard first mr foursomes motion to compel was based solely on the operating agreement arbitration clause and his claim that the parties dispute over the validity of the membership assignment was in response to this motion to compel mr jones did not raise any disputed any factual inquiry or disputed question of fact so i would submit to the court that the standard here is de novo and it's not even a close call the first issue raised by mr jones as to why this matter is not arbitrary is that there is no arbitration agreement between the parties mr jones is distinguishing between the operating remit arbitration clause and the membership assignment and the membership assignment in italy does not contain any arbitration clause it's a few sentences long it basically says that mr false from a selling his l l c interest mr jones for a thousand dollars and pretty much waiving all of generic arbitration clause and we would argue in this case the arbitration clause between the parties is about as generic as it can get there by obligated to arbitrate any dispute that arises under that agreement here  arbitration clause covers disputes arising under a subsequent agreement that is the membership assignment because the original agreement that is the operating agreement and the second agreement the membership assignment concerned the same subject matter as the court knows the operating agreement governs the relationship between the members their interests and the l l c the operating agreement contains very specific provisions regarding how the parties purchase and sell their interest to each other in the event of dispute so we have a very i'm sorry section subtle point by the op with this very broad i there you're correct your honor there's no dispute here between the parties that there is a valid and forcible l l c agreement they signed it no one's disputing it doesn't exist no one's disputing that this agreement is not a binding agreement when the parties but mr jones arguing as despite the fact that we have an operating agreement that is not in dispute and we have very broad terms of a dispute resolution provision in an operating agreement it doesn't apply to the membership assignment because the membership assignment is a separate unrelated contract and i would submit that the law is very clear otherwise they make a decision the a stanley decision both cited by a company in in our briefs state that when the subject matter of the dispute is precisely the type of arbitration dispute contemplated by the parties underlying agreement later agreements between the parties need to be arbitrated under that arbitration clause so i would submit that there are two separate agreement for purposes of determining whether there's an arbitration clause arbitration clause in an agreement there's a later agreement the parties contractually agreed this is all the same something that well it is your honor the membership assignment specifically relates a purchase and sale of an l l c membership interest in the operating agreement itself specifically kept in place i believe in section three point five that in the event of a dispute between the parties there's a specific mechanism in provision for the purchase and sale of membership interest so therefore when the parties entered into this membership assignment they were doing so subject to the terms and conditions of the  pledged in his complaint that one of the reasons why the membership assignment is invalid and on enforceable is the parties failed to follow the strict provisions of the operating agreement which binds their contractual relationship and how they in the operating agreement the membership could not be waived in the ways that your your it's your biggest plea that's the biggest complaint specifically in the complaint itself mr false who claims the membership assignment is invalid for several reasons the terms of sections three point five and five point five of the operating agreement and that this was not an effective assignment based on the way the operating agreement requires that transfers between the parties be be done so yes that is correct so what mr false rumors are going is in variety and an in force ability of a contract he's not arguing the contract doesn't exist now mr jones spends considerable time in his appellate brief arguing contract existence as a gateway argument i was sent to the court it's a red herring argument because mr falls from has never framed the dispute as a dispute over whether the membership assignment exists in other words he's never argued in his complaint that the elements of contract formation are not present and therefore we never get to this issue of contract existence because it hasn't been framed by mr false from in that way and the case law is very clear that when the court is looking to determine whether the dispute is arbitrary it doesn't look to the merits of the case it looks to the claim is framed by the parties seeking arbitration and then determines is this claim an artful claim case law is very clear that contract validity and enforceability are arbitron both disputes that's not a gateway decision for the court to determine an initially the gateway to the gateway issue for the court to determine is is there an enforceable arbitration agreement and it's also a gateway issue to determine is there an agreement that exists but here we don't have that second issue because nowhere does mr false from deny the membership assignment doesn't exist certainly mr jones claims it exists he wants to enforce he wants to say it's a valid contract both parties signed it the consideration passed from the purchaser  we have a valid agreement so no party has argued there's an issue as to contract formation secondly mr false from has argued as one of the reasons for the membership assign it being invalid that there was a failure of consideration not a lack of consideration another important issue that this court should take into consideration because of the court knows there's a major distinction between lack of consideration which goes to contract formation and failure jones continued we continuously argues that this is a lack of consideration case hasn't been framed that way and mr jones tries to convince this court as he tried to convince the trial court that this dispute is about contract existence it's not it's about contract validity and enforceability there's ample authority to support the fact that claims attacking contract but would it be an enforceability  there is an illinois supreme court decision jensen two thousand and four in which the plaintiff attacked the validity of a contract and argued that the contract should be rescinded and claimed that that was a trial court decision the supreme court said no that attack and that the ready the contract and the attempt to rescind it was itself again the dear son decision similarly argued that a recession claim based on an allegation of fraud was to be decided by the arbitrator not the court not a gateway decision because it's not attacking contract existence finally the first from two thousand and six found that the point of the question the case the validity of certain employment contracts in that case was not a challenge of the existence of the arbitration agreement therefore that very argument as to the enforceability and validity of the employment agreements was not for the course to decide it was for the arbitrators though they believe by the two main issues that the court here needs to resolve in favor of mr falls from to determine that this issue should be sent to arbitration rather than to trial in conclusion i would i would tell the court as the court knows there's a strong public policy in enforcing the primary purpose of  itration agreements that's to enable the parties to secure a speedy determination of their differences without the strict conformance of having to go to a trial and enforcing the contracts the parties entered into  from simply asking of this public policy the advance that he be given the opportunity to arbitrate the dispute with mr jones based on what the parties originally contract did to you almost six years ago i believe that the bar decision by the illinois supreme court indicates that the paramount factor in determining the parties intention is the scope of the arbitration clause in the contract and as i indicated before the scope in this case is extremely broad it's almost as generic as it can get any dispute between the parties it doesn't say any dispute under the operating agreements that any dispute among the members and any i'm paraphrasing any dispute between the company and anyone the more of its members i would suggest that any dispute even tangentially related to the opera new agreement we need to be arbitrated and here we have a dispute that is at the core of the very nature of the relationship between the members how they transfer and sell their interests between the two finally any doubt should be resolved in favor of arbitration even when the parties themselves dispute the scope of the arbitration agreement and so the presumption here is that the patrician agreement should be enforced and he doubts should be ruled in favor of mr forrester on and the appellant respectfully request that this court remand the man at the trial court an order that the trial court send this matter to challenge to a valid existing agreement the issue in this case is whether there ever was consideration its totality as unconscionable and he phrases it as a failure of consideration but what we're really talking about here is whether there was any consideration at all contract formation but i suggest that consideration is an issue of contract formation it is the very basic element for i would suggest that what the parties did in the membership assignment in april of two thousand and nine was waived the provisions of this agreement  specific provisions as to under certain circumstances how one of a member of the l c can buy out another member of the l c with them you have to remember that in this case there was  waive the agreement and service because they agree to sell it outside the parameters of the whole the operating agreement suggests that one partner may purchase the interest of another there's no dispute that the the parties in this case cholo sides chose not to do that is an intelligent relinquishment i wouldn't own right ok before that because there's nothing to read together if the membership assignment is not valid there's nothing to read together why they're related to or standalone separate agreement this agreement either stands out of stuff by itself or it doesn't this is a grey matter which has been challenged for if a total lack of consideration that there was no consideration here to support this agreement and therefore this agreement is virtually that's what he says he doesn't say it was a complaint he doesn't say that agreement is for the whole he says this agreement is sure that case was rather this subsequent agreement clearly related i mean you could argue in the broadest sense of the trend here and this is i suppose you hated to employment but the issue in that case was other traitor to interpret there's nothing left so in a case like this where this is not a case of contract and trip retention this is not a case of a dispute under an existing precision hacks on the track itself that is a defense to the contract and that therefore the arbitrator's should decide those issues here i would suggest well that's it i guess it kind of isn't really clear i suggest that the standard of review is not a novel but is rather an abuse of discretion i suggest that that's true because there were finding the benefit of a previous hearing and whether or not that should that make the scope of review of use of discretion rather than to know third twenty eight thirty northeastern second six one nine out of the first district sept second division in fact case they was a buyer of an automobile and then entered into a subsequent agreement pertaining to arbitration in the first  is nothing left to arbitra with regard to the standard it's clear that the earlier limiter injunction hearing was merely to determine whether the status quo should be maintained during the pendency of the litigation hearing did not concern mr fal mr morrison was arguing for the court i'm sure the court heard him repeatedly used the word validity inexistent interchangeably there they're very distinct terms attacking a contract that the parties agree exists and disputing it's the validity is very different than arguing that there was no agreement to begin with that there's no contract in that that's a gateway issue the two are very different the complaint in this case does not state no consideration it doesn't state lack of consideration it states failure of consideration it states that the consideration was grossly inadequate these are attacks on the validity and enforceability of a contract that the plaintiffs has admitted  exists and the defendant most assuredly claims exists and should be in force my final point in rebuttal is that when mr morrison sent for the court and said mr false from waive any claim the protections the head of the operating agreement that underlying dispute i would suggest the court is certainly arbitral because what mr morrison is saying is mr false from has no remedy if he signed some agreement that purportedly as a matter of law causing the way both claims isn't that really a question of fact isn't that the very type of dispute that mr false from bargained for when he signed that operating agreement years earlier he doesn't have a remedy now to say i want the issue of whether i claims i want the issue of whether this membership assignment is or isn't valid i want that arbitrated mr morrison to say no you don't have any rights you wave your claims you sign the agreement you're done you have absolutely no remedy whatsoever i don't believe the