morning your honor civically to the court stephen rock on behalf of the power robinson helicopter company i plan to be brief and i would but i would like to reserve three minutes of my time for attention with respect to this motion and the issues are to st because following the guidance of this court and kyron vs ortho diagnostics the trial court was vested with just so much discretion when ruling on this motion when a motion was presented to the trial court to compel arbitration when there was an apparent arbitration clause in an agreement at issue the trial court was vested with only so much authority as to decide whether the clause existed and whether or not it applied to the disputed issue one of the federal arbitration act once those findings are made it is mandatory that the case be sent into binding arbitration and that is what we're asking your honour's to do this morning is robinson helicopter party well your honor i think i can be found in the britten case which i think controls this dispute and clearly allows robson helicopter company to assert the clause as a third party beneficiary in this particular transaction we have a sale a helicopter the complaint at issue is about the sale of the helicopter the complaint alleges in essence that we purchased the helicopter the helicopter had some defects in it those effects either breached warranties that were expressed breach planes specifically alleges that defendant robson helicopter company asked part of the sale to the plaintiffs of the new helicopter provided a limited warranty said limited warranties attached to the complaint that is the warranty that respondents attempt to attempt to set aside from the sale transaction that was executed by lakeside and hillsborough that was the sales transaction that had the arbitration clause that limited warranty is specifically referred to in that contract it's a very simple contract one to one page on the front terms and conditions on the reverse that warranty was conveyed as part of the sale which is the subject of that contract that contract contains the arbitration clause as a third party beneficiary that is clearly identified and intended to benefit from that clause robson helicopter company is entitle to assert further and respond its original complaint at paragraph a personal show trial that's a very specific amount and it happens to be the exact contract price set forth in the contract that contains the arbitration clause it's very clear from finest comply that they are suing on the limited warranty as some separate stand alone agreement that has nothing to do with the original purchase it's very clear from plaintiffs complaint and they admitted that complaint that this is a suit over the story overall sale which was the subject of the agreement this year  trial court suggested or respondent suggests where robson helicopter companies are merely incidental beneficiary of the contract when one looks at the contract and the conclusion is inescapable that robinson asked the parties specifically to agree to their terms and conditions the manufacturer's terms and conditions and every one of those terms and conditions pacifically refers to robinson hawker company each one is intended to inure to the benefit confer rights upon robinson helicopter company and both the plaintiff fires and hillsborough the seller specifically and express fully agreed to those terms and conditions if for instance and there's no dispute that if a third party beneficiaries merely incidentally benefited or remote beneficiary one hundred ten event the issuer they probably can have certain rights on a contract and have this arbitration clause read something to the effect that the event of a dispute involving r h c with respect to disagree that it shall be determined by finding arbitration it doesn't even refer that the seller of the buyer it only refers to loss of health and so with respect your honour's t the two questions that have to be answered or should have been answered by the district court in this case under this court's decision in cairo one was there an arbitration agreement there clearly was it's a signed agreement executed by coal the seller and the buyer it specifically identifies robs the helicopter company as a third party and is specifically and first upon them rights and benefits under that contract so clearly under the britain case also decided by th arbitration is to be construed broadly disputes as to what falls under an arbitration clause are to be decided in favor of arbitration because it is preferred and encouraged and i would argue that the only reason they got the lemon in warranty is because there was a sale the limited warranty is specifically conveyed as part of the sale and so it is part of the overall transaction and i think when the respondents in that in their complaint that they received a limited warranty as part of the sale which they clearly admit a paragraph twenty other complaints there should be a stop from claiming that it's somehow separate and distinct and has a life of its own because the fact is without a sale of any product a warranty is meaningless and has no life it's given life by the  and with that your honor i'd like to include and just state simply that i believe we have met both prongs of the test fourth in britain and the district court's order denying our motion to compel arbitration should be the problem with this case from the opponents perspective is they literally have the cart before the horse here when you have a case it involves a breach of warranty you have a situation where you look at the warranty itself and when you look at the warranty in this particular case which appears it as part of the record on appeal it says absolutely nothing about any sort of arbitration being required indeed the language in bold print on this document is that this warranty is exclusive and is given accepted in lieu of any and all other warranties and representations expressed or implied or any statutory whether written or oral when you talk about something being clear this is clear they are saying this document by itself is what determines this warranty it makes no reference to anything else period what the  done in this particular case is referred back to a sale between hillsborough as you noticed earlier between hillsborough and my client now that document that sale agreement was just for the sale of the helicopter as i pointed out in the brief all terms conditions yonex engine everything concerning that helicopter was complied with including the turning over of this document there's nothing else left under that contract of sale to litigate or arbitrate we're not alleging and we have not alleged a breach of the contract of the of sale we've alleged breach of the warranty implied and that same form gave me pause for thought and i wondered why that was when i was put in this case together and the reason that is is robinson helicopter  literally trying to insulate itself from anything and everybody coming back against them they have expressed we said in their contract with hillsborough and this will become back to hillsborough they say in the first paragraph of their agreement that you are in no way shape or form an agent for us to do everything and you can't find us for anything period and guess what hillsborough didn't they passed the helicopter on  their own contract of sale they didn't try to find robinson helicopter with anything else they did exactly what the contract of sale required and that is to pass on  warranty now let me point out for a moment here why the limited warranty is indeed a standalone document and that is because you saw how fast the sale occurred between robinson helicopter  one page simple document and the person gets it and he not only gets that but he gets the limited warranty as well because that limited work he goes with the helicopter it does not necessarily and it does not depend upon the contract if they should go with a helicopter because robinson says it does and it's warning it says it's good for one year or one thousand hours whichever hers first and that's the only limitation on that's in the first paragraph i believe that document now the question here of course is in the beginning the initial question is whether there was an agreement to arbitrate and our position is clearly there was never an agreement to arbitra contractual construction that you know usually drafted against those i mean construed into those who drafted well the one thing that would have made this crystal clear in this case is all they had to say is in their limited warranty we're going to arbitrate if we have dispute over that that's what it takes one lousy little clause and that is not there indeed it says precisely the opposite that says you can't depend upon any other document written or oral implied in law or anything else you have to depend upon this in the morning document and nothing else and that's why we sued on that and that's why we submit to you that  arbitration is not provided for in this particular case all the terms of the contract of the film has nothing left arbitrate now as i indicated there are several things here that are extremely important if in some way hillsborough was authorized to somehow bind him to arbitration they may have tried that but they didn't there was just the contrary there was a a prohibition against against hillsborough from doing anything to hold robinson to any sort of  dure and when i was going through the briefs last night reading this strange will now if you sort of popped in my head from a story that occurred many years ago in the press it was a puff fellow somewheres in the midwest who managed to build what amounted to basically a ship in his back yard and had all the safety features all the latest navigation everything and it was completely useless he planned it out for the um degree the fact of the matter is none of it worked because it wasn't near the water and he couldn't get it out the same thing here robinson has built their contractual world in their backyard but they didn't get it to where it was with the water in the limited warranty they are the ones that made the mistake and they shouldn't be allowed to go back into some sort of gymnastic try to refer to these contract of sale documents i submit to you the unlike the previous case involving lockheed this is pretty simple we're not done with two piles of paper here we're looking at basically two documents isn't part of one large transaction no it's not part of one large transaction for the simple reason that warranty goes on regardless of this paragraph serves or any other  well i believe that is the law under the uniform commercial code if they make a work either that document goes with the vehicle be it an aircraft car anything or period of time we were discussing ford motor company earlier if you're a purchaser of a vehicle the commercial code is such that that work he goes to any subsequent purchasers well as long as it's within the terms of that agreement and that's the same thing we have here so this is our position  is that this is a standalone agreement and clearly by their own language isolates that from anything else now i realize that there is a liberal application  concept if you will but that certainly applies when you have a situation where the documents or line up here the documents do not line up to reach that end and i may point out also that let's face it you know i can say to them tomorrow let's go or betrayed and regardless of these documents we could be an arbitra that is than ours variance my clients mine that there's a far better brand of justice and fairness that he had within the federal court system than there is the have a harbor traders they serve a useful purpose to be sure but the this is a technical case involving some technical problems that's going to occur require discovery it's going to require some in depth analysis and a sharp judge i specifies what that limited warranty is and number six and it also says in paragraph twelve that if there is a dispute involving this agreement not the warranty but this agreement well that case then the limited word itself has to be in conformity with that and the limited wording is not in conformity with that indeed it says exactly the opposite it says that anything else is written oral anywhere it doesn't have given this warrant the took away and that was robinson's language in there and on that basis unless the court has another question is i respectfully submit they don't see any rebuttal counsel itself without the sales transaction without the contract for sale this warranty doesn't set forth consideration there's no usually exchange detriment and then if that it doesn't confer it doesn't talk about price  doesn't talk about terms it doesn't talk about any of the things that a contract has to have to be valid and enforceable and that's because it's merely the term it's a term of a contract all it does is tell you what the condition of the new product  sales contract or no other agreed and the last point i'd like to make your honour's is with respect to the clause in the contract that says goldsborough is not an agent of robinson helicopter company with respect to this analysis under a third party beneficiary analysis it's legally irrelevant and we come in here and said you know what we were parties to that contract our agent executed the contract on our behalf and we're forcing it as a first party that might be relevant the issue of the stance of all or actual