an l l c versus interstate battery franchising and development incorporated for the purpose of securing an odd word from a panel of arbitrators relating to charging bisons right to terminate the franchise relationship so the error occurred because the franchise agreement between the parties expressly carved out from any duty to arbitrate any issues and disputes relating to the propriety of a franchise terminations interstate battery as was there a termination there was not a determination what had them then you're outside that language i don't agree your honor and here's why the jambs proceeding initiated by interstate battery sought a declaratory judgment th buys and had no right to terminate the franchise relationship if it were successful in securing that result from an arbitration panel it would have precluded charging bison from raising based on the facts that it contended support a determination it would have been precluded from later litigating that same issue which was under the terms of the franchise agreement carved out from arbitration in essence what it sought was a declaratory judgment which was nothing more than a mirror image of the underlying claims by charging bias and for terminations so to address your honor's question in a different way yes there had not been any formal terminations yet but charging bison on september sixteenth two thousand and sixteen issued a letter to interstate battery laying out its demand for terminations of the franchise relationship based on a series of facts which i will trouble the court going through that invite a discussion about resolving the issue that's the reason the letter was sent what it interstate battery do ten days later and in the letter asked for a response in ten days ten days later interstate battery walks into jams and files an arbitration demand and says well there's been no terminations the at and we think this dispute is arbitrary but it wasn't and it wasn't because the arbitration agreement interstate battery's own form arbitration agreement on its face carved out every conceivable dispute relating to terminations here's how they for any issues relating to the propriety of determination of a terminations of the agreement that's contained in thirty five c also in that same arbitration agreement any disputes which are dispute between the parties whether it was an application by interstate battery to enjoin use of the trademarks for the recovery of money it says the french i c didn't pay anything post germination is carved out for litigation but but i don't understand that you're arguing something that the arbitrator has that's  correct if your honor is is asking whether this issue that were before the court today should be decided by the arbitrator rather than the court my answer is twofold one  don't believe that this court can address that issue it was raised below in the district court that the parties by agreeing to jamz arbitration rules also agree because those rules say the arbitrator decides issues of his or her own jurisdiction this court has said so many times that the issues about whether it is an arbitrary arbiter bowl issue is for the arbitrated inside you ark correct your honor that where the parties have quote unquote clearly and unmistakeably of read that arbiter ability issues are to be decided by an arbitrator yes your honor is absolutely correct we submit however that there was no clear and unmistakable of agreement here in and we say that because this is not the like of those cases this court decided where the arbitration agreement is so broad in compas as all disputes relating to all controversies between the parties and then coupled with that they set of arbitration rules here jambs that has the arbiter decide those issues  is one decision by this this court that held us such but in that case that arbitration room was extremely broad this is not that case what do you do with the cover case from this court twenty sixteen that when you when you adopt  agreements here it is clear from the language of the arbitration agreement that the parties agreed to carve out from arbitration expressly agreed to carve out for more from arbitration disputes relating to terminations so the it we we also submit respectfully your honor that that issue itself is not before this court on appeal it has been waived by intrastate battery because they did not file across appeal challenging the district court's conclusion that it had now but we can affirm the district court on any grounds that are supported in the record even if the district court didn't rely on those grounds i understand your honor i respectfully submit that it would lead to anomalous results if if  that interstate battery for example granted summary judgment on one round and not another and i appealed the ground on which summary judgment was was granted it could await the briefing on the issue and then decide if it wants to challenge an error made by the district work that was not made the subject of a notice of cross appeal i appreciate what your honor it is saying but i do think that this situation is different from those cases where this court looks to issues that are in the record and decides to affirm that it is record we're going back to the agreement we submit that it is so clear on this record yes good morning your honors me please the court len mcphee appearing on behalf of interstate batteries the appellee in this matter i wanted to raise three issues for your honour's this morning the first is that there has been no terminations the dispute on this point relates to charging bisons requests for a declaration that it would have the right to terminate there has been no terminations second there are other disown both sides agree there's been no terminations and that's where we started today and there's not an issue about that thank you second there are no disputes there are other disputes that are undisputedly or not in dispute as to whether they are subject to arbitration that have been raised and are pending and third in the alternative the question of whether disputes are subject to arbitration is for the arbitrator's to decide when the parties have clearly on stake oblique delegated that question to the arbitrators here pursuant to incorporation of the james rules the standards are well so these are the only issues where that carve out applies to this case where there's been no terminations that that's really all that we need to look at his neck i think both sides would agree on that i with respect to this question of whether the nature of the dispute is carved out from the arbitration clause i want to point out a couple of a couple of points what the record has in it with respect to the claims in this case according to the court's order is that there is a dispute over charging bisons right to terminate based on the alleged misrepresentations in the f t v and other grounds in the record you have our interstate batteries of actual arbitration demanded which multiple issues are raised those include whether system changes constitute a breach of the agreement whether in a state battery committed or by a breach the implied come to good faith and declaratory judgment that the issues raised by interstate battery in the arbitration proceeding including the question of whether charging bison can properly terminate that is what they are raising again your honor as you point out how they are not claiming to have terminated they are not claiming to have initiated any effort toward terminated they have not sent a notice of terminations the letter that counsel referred to is not in this record only the characterizations of the dispute as i have just laid them out by the court and by the parties that letter  therefore it is not not for your honour's and the important point here is that it's conceded that there is no has been no term nation let's look at the arbitration clauses self the plain meaning and the context when read together show that these provisions show that this exception is limited to what instances where there are actual terminations there has been an actual determination that has been attempted to plain meaning use the word the propriety of any terminations is the exception in thirty five c one propriety means proper was it proper was it correctly done according to the standards or requirements in the agreement there has to have been a term nation in order to make that assessment not true because if you look at the terminations provisions in the agreement section twenty four b specifically allows for terminations that the notice goes out before the terminations effective and if we look at a real world cont this agreement makes sense in the franchise context thirty five c if you look at the other exceptions under thirty five c they all relate to instances where you are protecting the brand of the trade secrets trademarks cover not to compete and efforts to transfer of the franchise agreement to an unauthorized franchisee and again we're talking about batteries potentially hazardous waste here it is in the franchise source requirement that  have the ability to pursue and protect the brand in those instances many times in an injunction scenario if you look at thirty five d it carves out the ability to seek injunctive relief and specifically references thirty five c we have the ability to s injunctive relief those are the context those are the issues that the parties agreed would be carved out from arbitration in the instance where the franchise or has sent the notice of terminations it has not taken effect yet and the franchise he wants to dispute that they may issue if but for thirty five c one they could initiate an arbitration challenging or looking to the propriety of the term nation and then when that terminations date does take effect in the fray and they know that terminations of the franchise or pursues claims to protect the brand in that instance the franchisee would come in and defend the case in the court by saying this is subject to arbitration as to whether that determination was proper or not they could  and will try to muddy the waters delay the court's proceeding by saying that that subject to an arbitration proceeding this carve out was intended so that in that instance the ranches or would have the ability to be in court rather than have two fronts one an arbitration that could slow down its efforts to protect the brand when reading cannot junction with each other those clauses remake sense both in context and according to point meeting there needs to be an actual term nation which has been conce isn't in this record with respect to the other question i wanted to point out there are four cases this is the question as to who decides arbiter ability there for cases from the fifth circuit that i wanted to point out case both say that when the parties have incorporated into their agreement the delegate rules that have a delegation clause that is to say that issue of arbiter building is for the arbitrator in that instance parties have clearly not mistakenly agreed that that is a threshold issue and your honor judge smith in both douglas which was a two thousand and fourteen case and in that case which was in two thousand and sixteen laid out starting fights and concedes that it's not arguing holy ground round was under the test laid out by this court in those four cases did the parties agree to arbitrate at least some claims in an arbitration clause and is there a delegation clause those are the two questions here they're both  now labored is that as a as i noted there are number of other claims at issue in this record in that arbitration which under the case law even if the there was some portion of the claim that wasn't subject arbitration i'm only going to briefly return to a point that i made it was not too successful in arguing that there is going but i simply want to point out one thing about the situation agreement and how i think this case is very different from the petrifaction other decisions the the agreement itself has a separate section in this is section c under paragraph thirty five of the franchise agreement claims not subject to arbitration and that includes any claim relating to the propriety of a termination again i think that in those circumstances where the parties underlying agreements the document that they each sign identifies those claims that are not subject to arbitration it could not be more clear than that a carve out has been made to conclude that merely because the parties also referred to james rules another set of rules that aren't attached aren't laid out to govern their arbitration and rules which do give the arbitrator discretion to decide that gateway issue to conclude that that in and of itself is clearly and unmistak evidence that the parties agreed to arbitrate an issue that they said in their agreement is not to be arbitrated i think is incorrect your honor respectfully thank you michel you thank you very much