at the trial court well how could a never be said if you don't have a right that you can enforce it does not follow that you can also waive that right because waiver is not vested and in this case during the pendency of the case at the trial court level up until the time of the fosler decision that's exactly what we had and in kochi the right to compel arbitration it was in existence in the sense that it was in our written code but it was not enforceable or was unrecognizable until foster came along because of the language in the statute first because of the language in the statute and then after the case was litigated for four year on april fourth two thousand and eight the fifth district decided a case called harder verses of the aforementioned cases now before the supreme court carter was the only case in any district of that time that dealt with whether or not harbor attrition force initially home care contracts so at the beginning of this case we had a statute which clearly would not have allowed and forstmann of an arbitration clause and then after a year of litigation we have carter which not dovetails with the statute but is the only authority in illinois on so from the time this case was pending up until the fossil a period of it looks like twenty six months first we have a statute that made it impossible for me to enforce this in coalgate right to arbitrate and second we had a fifth district decision which was minding on every court in every trial hording illinois because it was the only decision which would have kept jus was denied but there are people that i mean i mean yes they did it's nice that you're darn right that i mean the the issue is ultimately that they prevailed at some point yes and i guess the crux of this issue is what what is we can focus the trial court considered what happened from the data filing which was march seventh two thousand and seven of intil foster and during that period of time that's what the court looked at to determine whether there was a waiver but that's the period of time when our right was only in killing and couldn't be in for the relevant period of time just thirty one days it took as soon as the foster case was just to recognize it had been a change in the law recognize that now we did have a valid right and could in good faith bring it to the court's attention and we did thirty one days that's the relevant period of time that we all should be taught to determine if there is a  healthcare provider concludes nursing home that health care act says that the arbitration agreement in order to be valid has to be part of that cannot be part of a larger contract has to be a separate instrument in and of itself with its own consideration it has to have a statutory language of three sixteenth's inch right to clearly advise the he should wear in this case the rushing home resident that they are signing a an exhibit state's written no written notice of the demand for arbitration must be given to the other party not more than seventy five days after the notify of the claim in this case and also in exhibit is a letter from opposing counsel stating we knew about the claim when it that they was fine when the case was filed meaning march two thousand and seven the nursing home had seventy five days then from march seventh two thousand and seven within which to demand arbitration under its own country  waited until she finished of two thousand and nine in that letter where they are attempting to excuse the twenty seven month delay they  authority that it was illegal in possibility the trial court rejected this argument and the the reasoning that the trial court used was five whole number one there was no third district ruling on this matter in fact until carter was decided a year after this litigation in there was absolutely no case in illinois and either side of the issue so neither carter nor foster could have been an so before carder there's absolutely no illinois case law standing in the way furthermore the defendant provided no explanation to the trial work whatsoever why they did not do the exact same things that the defendants in both harder and shall be construed as if such in validity or under forcible prison provision had never been contained here in so if this was and done for civil rights at the time it's making the savings also i believe this court should be aware of the argument that this was not at that this was an incoherent right or this right didn't exist at the time of its making it was not an argument that they mean to the trial court judge on the contrary they specifically stated that new beginning only recognizes the arbitration clause with one in forcible by law not that it did not exist so they acknowledged the existence of the right to the trial court here it said that once a you claim is mainly they have seventy five days within which to demand arbitrary if there was any doubt in their mind of whether a claim was being made by by finding that the defendant's actions clearly imply a waiver of the arbitration clause admittedly hamel and are a call and then were both cases involving the industrial commission however there is no logical the nursing home file the answer file the jury demand asserted to counter claims against mrs benson the first that she was contributory negligence for causing her own injury the second  they first raised the issue of arbitration they requested the production of records from forty six of mrs benson spectacle provide arbitration was raised for the first time that the first of course is the conduct of the parties of the defendant and in engaging in active participation for twenty seven months the second that they fail to demand arbitration within days of learning of the claim as per their own contract which they drafted section three of the federal arbitration act there's also another round and so is noncompliance with the illinois health care arbitration  i'd like to address section three of the name of the federal law arbitration that states that in any suit or proceeding brought in any court of the united any issue referral to arbitration under an agreement in writing or such arbitration the court in which the suit is pending upon being satisfied that the issue involved in such suit or proceeding is referral to arbitration under such an agreement shall an application of one of the parties stay the trial will stay the trial of the action until such matter which is preempted by the federal arbitration and apparent that it will be that issue was argued last week on january fourteenth in the the when the supreme court even if the federal arbitration act preempts that it will ruin your city home area if the applicant for the stay in this case the nursing home is in default in proceeding with the arbitration then the motion to compel arbitration must be denied in this case they are going to fall as justice pension a judge into it said for actively participating in in litigation and conducting extensive discovery over twenty seven months or because they failed to adhere to the terms of the contract which they granted that the demand for arbitration must be given not more than seventy five days after they learned of the claim or we presented no substance to the shoes to the court and all this discovery that the plaintiff was discussing occurred prior to that after the fossil the decision was handed down between the time that we learned of the decision by the time and that's what we were saying i mean our brief is not necessarily that that was an argument that was presented to the trial court rather it's not one that's on appeal in this case the issue it's on appeal in this case is simply the issue and because the point no review is appropriate the court the trial court did not hold an evidentiary hearing on the court rather just looked at the record to determine what was happening and their conclusions were once as a matter of  arbitration bad language incorporating that rule was included in the contract on the plaintiff attempts to minimize that by citing the state farm case in which have done so in in sort of a dual analysis saying that under the common law the defendant or the party seeking arbitration did not waive their right to arbitration but also we could have looked at it under th