thomas wilkinson for a pilot michael lark to be here this morning may i please reserve three minutes thank your honor helen michael locked appeals the grant of summary judgment against him on all consumer he sued the retailer distributor in which treatment company for supposedly pressure treated lumber that he used to build a very expensive addition and outdoor deck for his property in st john i have on the the question of whether or not the common law still survives sea adoption by the virgin islands the u c c is is one question but i think the more fundamental question here as it is as it relates to that claim is the statute of limitations ok and you know i read that the i code title for interface play a five second thirty one see c therefore take that claim from six years to four years well i would suggest your honor that these claims can be pursued concurrently especially when it's a consumer based claim as express the policy a policy which also has been expressed by the church on virgin islands legislature that the residents here should not be deemed second class citizens for purposes of pursuit of a simple question he would have gotten a very complete and there on the whole problem i'm glad you raise that your honor because when he looked at and found a few boards on his outdoor deck as having been the to aerated in the two thousand ten timeframe during his occasional visits that did not cause him to believe and i would suggest would not necessarily cause many reasonable persons to believe that hundreds of boards that had been installed at his home including many boards were question to them and we had some termite infestation in the fall of two thousand and eleven he did pose the question to them and they acknowledge that they had a soul defect of lumber he pursued further and and then spoke with a lawyer  but i would suggest that there are many reasonable people who would not leap to the conclusion that all of the hundreds of wards including those that have know about what appearance of effect they may have been sourced from different locations are necessarily defect enough for the sessions when the patients to start running thank you judge kraus because there are circumstances where you may have a sickness but here there is no reason to believe that the sickness sorry necessarily applied to all of the lumber that he had purchased it which he had came from came from the paradise they were all purchased from paradise but he didn't necessarily know that they were all distributed and treated by the same company now paradise city why does he have him through litigation that the distributor was putting them in the great southern was the treating company by that time they had numerous claims against paradise and paradise had sued these other two parties for reimbursement n very well with the question that now you are just asked yes there is no rule of law in the third circuit around the virgin islands that hold that discovering a small bit of a problem with respect to numerous purchases or numerous items like this necessarily should cause a typical homeowner to conclude that everything it's defective concluded that notwithstanding that weak due diligence evidence the case should have gone to the jury and third circuit and a case in a decision by judge arlen adams concluded that was properly sent to the jury and that  upheld here we had uncontroverted evidence both in the deposition testimony and in mr locke's affidavit that he did not reasonably understand that this was a problem applicable to all the boards and and i think that there are many jurors out there who would draw the same conclusion it's not true without or that should be concluded as a matter of law it's a matter that some consumers clearly would not conclude that all of the lumber within his edition for example that had no outward sign of a problem was necessarily defective you can if you have an outdoor deck you can have cooling water you can have a board here and here and there that you replace doesn't necessarily mean anything and so you have more information mr wilkinson i'm not sure that you ever answered my first question but let me restate when i think the legal quandary here is if you assume that the last purchase of the lumber was sometime in two thousand  ok how do you get how do you get from two thousand and six to two thousand and thirteen and what are the legal theories that get you there well i would submit that the contract theory common law claim surviving that you really any a four years to get you there that gets you to two thousand and ten if i do you get caught how do you get the contract and i give you even six years for a second how do you get the contract theory from two thousand and ten slash two thousand and twelve to two thousand and thirteen i still think you have application of the discovery rule your honor under the under virgin island case law there may not be a lawyer and you're relying on right here you're relying on white relying on white which suit which supersedes  it does and here we have a we don't have personal injury but we have certainly a very serious safety concern the deck was it was unsafe after these reviews and had to be effectively remedy for this misconduct all right that's assume that we find that the discovery rule does not apply under the u c c it's just assume that for a second or so that that means that under under your contract claims with a b c c are common law you can't get the two thousand and thirteen what do you left with left primarily with a negligence theory and the consumer protection law alright now theory so you r argument would be that that negligence statute begins to accrue when you had the when your client had the received information from his carpenter friend mr starr little child here and folks on his side you figure out how you want to divide up an additional five minutes i would assume it your honor and particularly judge rauf that mr locke who is a homeowner who's a little bit handy with carpentry even acted perfectly reasonably under the circumstances there may be jurors who a concluded he didn't act reasonably but if a jury question this is a question that in schmidt v various other cases including that and joseph where it's the collective judgment wisdom and experience of jurors that ultimately prevails and there might be some people that might be some lawyers who might think that he could have acted more promptly and more diligently or or again drawn some conclusion that wasn't necessarily warranted but that's a matter that's classically for the jury and here it's particularly important because you have in the virgin islands a fish he shifted a role that these defendants in this court attempted to impose on this consumer so you've got a double whammy or a whipsaw situation to use a longer term where they're not only can't pursue the claims but also end up burdening their fees and costs on a consumer as well so before that kind of very serious and or coney and outcome is visited a gun as fond that your client was not diligent but it's even assuming if we find it correct that that question she go to the jury how do you get by the just to the action doctrine which was articulated is applicable by our court in the virgin islands on the case that even cager how do you get by that well the gist of the action doctor and i don't i don't transferred into his own name so that you could refinance it to do all the expenses incurred in trying to deal with this problem so i would suggest you it's primarily consumer issue and you know if  can apply the gist of the action dr in the economic loss doctrine and so forth and you leave an individual like mr locke that with no remedy whatsoever you want to oughta be a looker sue a negligence theory because these parties knew they had a problem these parties were litigating with with each other over the problem they didn't give him any notice they didn't give any warning they settled that case and judge gomez placed the settlement under seal kept it secret so that no  proceeds could be then provided to mr locked and other affected consumers so i would again suggest that there is a there is a good policy basis to ensure that some remedy be afforded so long as he can apply the the discovery rule to his case if you will that now we dealing only with the issue of this as a good on as i understand that there are two types of i would hear one that was already created and and  six year statute argument the reason we haven't we didn't know whether this was service based or treated at the outset it's not something that someone like mr locke would have thought information of mr locke would have access to and it really shouldn't alter the and shouldn't shorten the satchel imitations for someone in his position he's not he's not the distributor purchasing from the from the treatment organization and providing the specifications to great southern we only want our lumber serviced are treated and thus in such a fashion are to this degree he's buying the wood on the island expecting as any consumer would that it would last for thirty to fifty years so i i think there's no reason to shorten the stature limitations as to him in his position  preserve in eight by agreement of the parties i'm going to address some of the common issues that we give me a little bit more time than others and there are also as an individual as issues which will be happy to address in turn  it's important to remember that all of the word in this case about which mr lee the appellate complains was purchased before december of two thousand and six at the time the with purchas there were no express words there were no representations made by anyone from white cap hell it has testified that he had no contact or no contract didn't even know my client great southern or putnam was at the time what he did testify to was that he came in with an expectation that the would would last for fifty years there were no tags on the words that identified who the treated were there were no tags on the woods that identified how the wood was treated no tags on the wood that identified what the proper end use for the wood was all of these things  or no on his of his it's it's not that he's required to know it the point is that he came in with an expectation and he is trying to turn the expectation into a representation that was never made he thought the world was going to last fifty years and by his own testimony within five years he noticed that these boards were rotten and we're not talking about small bore and that's two thousand and eleven five years two thousand i said within five years your honor that the testimony is that within five years of at least some of the  was sorry i keep getting to question mark from within five years of at least some of the purchases he realized that some of the wood was rock and testified that he could put his foot through and we're not talking about small pieces of wood we're told not to buy six by twelve and he said that every time he came down to the virgin islands every three months there were a couple more and ever somewhere the record says it was like four or five or six testified that he thought every product that was sold anywhere in the united states came with the war and during that period of time he went back to the same place that he purchased this wood from paradise lumber boys and their lease an implied warranty it's it's not that there's no body is arguing that there isn't an implied warranty if it's there or what what the argument is is one that he sat on his hands and didn't s into with respect to my client at least great southern that there is a lack of privity in person landry and a lack of him being a proper third party again but isn't all that goes beyond the issue here i mean judge gomez really to get to the heart of that matter and essentially said well regardless of the well what the facts are these cases time are correct your honor and all of the appellate arguments are based on two assumptions big assumption one is that the discovery rule applies to all of their eat all of their books and the most important fact in this case and thirty three pages of briefing and ever how long he was up here arguing they have not acknowledged the fact that their complaint in the very first their states is file would was not noticeably defective and it was not until two thousand and ten that the plaintiff discovered that it was  the very first paragraph of their plate of their plate they have stated exactly what the court finds that they knew in two thousand and ten now less than a month later before the response actually filed they amended them and they removed that sentence but they didn't replace it with language about when they discovered that it would change it to say we discovered this in the fall of two thousand and eleven ok so the complaint was amended well the deleter that they amended the complaint they did they took out that the time date didn't replace it with a new time date they did replace it with something what they replaced it with was a statement that said equitable actively misled here we know the client has testified that he didn't ask a single question and when he did ask he was told so that doesn't apply the second is in extraordinary circumstances where maybe the the plant you sailing to say actively misled and i know you complain and you complain on behalf of your client perhaps rightfully so hey great southern we don't even know if we sold the slumber it would not be a question for the jury your honor if he has it made it that everything that he thought was based on his expectation in his personal is may have come from paradise but you were in the chain some of that lumber came from a correct your honor in that paradise did not deal with great southern right ever any dealings between those two but assuming great southern treated right which we do have our can't be used to toll the claim against your client absolutely cannot and your honor the aecl of the acted misleading of the equable totally is a different situation than what you're talking about it's a situation where they've been actively expectations of the consumer can't be very act selling reportedly for the purpose to which the consumer wants to put that would constitute an act of mr misrepresentation uniformity predictability and finality but they argue as to contract that there is a parallel claim to be brought well your honor the third circuit says otherwise and quite frankly the courts in the virgin islands that have actually addressed the issue of said otherwise to the white case never even got to that issue plus it did involve a personal injury as as your honor has has pointed out but bottom line is it's not case the they cited for the proposition that this is a jury question was a case either a situation where there was a medical issue and there was an unsophisticated plaintiff he was charged with things that doctors have said or the only other case they've cited was a case where there was there was a fiduciary duty involved and shareholder derivative action in the courts said hey you know you can sit back case which judge roth was involved with these are cases that apply finally on the gist of the action they made no argument your honor they decided no case  doctor we've seen we've predicted that it would be applied in pennsylvania and i think that's an accurate prediction i don't really find any fault with our prediction  that would be applied at least under the facts and addy in the virgin islands but isn't this case a little bit different than addie in that i think what trying to argue here is that this is a product liability case and a private eye of villany case is couched in various theories including negligence theory and that because of the special nature of product liability case the gist of the action doctrine should be applied just because you may have been an underlying contract your honor obviously the that was are you ready for now i'm done plus the gist of the action is very similar it at least in operation to the economic loss doctor which is undisputed applies in parts liability world it and in effect the application of economic loss doctrine has does the same thing and that is it basically states where there's an injury to the product itself and there is not a personal injury that this this is  good morning ladies and gentlemen the court your honor may it please the court alex moss with on behalf of paradise lumber white cap investment corporation one of the fundamental issues that were here before the court is the question of the dichotomy between questions on question in the summary judgment opinion issued by judge gomez contrary to the allegations by the appellant the court did not make many decisions on the facts that relied on the law and the works determination of  applies and how it applies not necessarily affects the case and one of the ways we see that is the application of judge gomez's opinion to the determination of when the statute of limitations starts to run for the question of how whether or not there was reasonable diligence whether or not the discovery rule applies the specific terms of the statute or is duty bound or don't even allow us to get to those questions of fact and judge gomez opinion is solid on those issues you see specifically says it does not matter what the plaintiff in this case knew but whether company versus county case is one that can be viewed as not a rule of when it accrues but a tolling rule on and we've said that that's the preferable way to look at it if you if you think of it that way that there is a date of accrual at the time of injury but if there is a tolling and as a result of the discovery rule why isn't that reading consistent with the language of the restatement you're on i think the first body that's going to determine the law not the restatements one of the things that we have to look at and we're bound to look at in these matters is what is the legislator set out for the duties the rights and the obligations of parties when it comes to litigation and they did that clearly in this matter by them words they used and the words that judge gomez interpreted under two two seven five specifically that statute talks about it doesn't affect holding it doesn't affect her but judge gomez did a very very sinton else's of the traditional distinction between equitable polling and the discovery and if you back that up one step further you have that same statute that tolling it says that the contract claim accrues when the breach occurs regardless of the creek parties lack of knowledge of the creech that that date of a cruel and why isn't that consistent with our case law that talks about and one that i would simply their excuse me i would i would suggest that the the words used in the statute are to be given their plain meaning under basic canons of steps for instruction we look at discover a rule doesn't apply and then bring it back in later it's an inconsistency within the law and one that i would suggest wasn't intended by the legislature when they wrote that statute again this goes back to the question of consistency the fundamental purpose of u c c i guess that the the other argument to that would be that well so far as to doesn't seem to allow for a discovery rule because for but again this is a question of a conflict within the statute itself and how do you reconcile that and i believe that judge gomez's opinion did an excellent job of talking about the history of the discovery rule and did a very very very clean analysis on what are the distinctions and what was the intent of the legislature when they crafted this rule and again this goes back to the question of uniformity consistency and a foundation in which businesses can do business throughout the country and be secured in their understanding of the walk let me just since you represent paradise and it's more clear from the record that mr locke at least had some dealings with paradise lumber why isn't there a question here on the implied warranty of this i mean you know he may have dealt through a contract here but clearly there here is agent like you know that he they wanted to buy lumber that was good for a deck in the virgin islands the record establishes that when mr locked in his designees purchased lumber from like capt he did not make any representations to white cap about what the wood was going to be used for he didn't see their recommendation for quality quantity size or otherwise of the lumber that he needed for his particular purpose the question of what they were selling the lumber for is an internal expectation and an record specifically says that mr lupton never had any conversations with white cap paradice their representatives or otherwise with regard to the use the quality or otherwise of the work and there's nothing in the record indicate that white cap knew what he was buying a long before there is there is no evidence of that your honor and given the fact that there are numerous people come in both sophisticated unsophisticated with projects of every varying nature to try to impute knowledge a white cap as to what an individual consumer is going to use a piece of wood for is no more reasonable than trying to ask somebody what fish is swimming by a thousand yards out ari thank you your hon any of the court virgin islands or otherwise and it contradicts fine bomb and told me on it which clearly say that the the u c c claims cannot be brought a connection in in combination with the common law marriage contract like say kerry of four years actual argument that they knew of issues in two thousand and ten yet it wasn't too happenstance dinner with a carpenter brand that he learned of his a cruel only thing he learned two thousand eleven was the affirmation of what he learned two thousand and ten he learned that other people may have had the same problems that he had but you didn't what he what he actually learned at that point what white why isn't it the what it is we're reason to think that there's a cause because you think it's some very small thing and it turns out that it's far more widespread and that would trigger a do you even query that might not have been triggered earlier i can foresee examples where that could be the case but that's not here after that meeting nothing in that meeting will force the appellant or the call to come to learn anything new he did not learn anything new in his house there's no evidence no record that he conducted any investigation on his own property there's no investigation there's no evidence in the record that the two thousand and eleven he found any other boards on of house that were defective that he hired any experts to look at his house that he did anything other than go to paradise lumber the following thank you ron with respect to that last point in fact we did notice in the fall of two thousand and eleven that he had some termite infestation which was quite alarming and hadn't been noticed before and that was one reason why he raised the issue with mr little child who was a very busy replacing this lumber around the island while judge gomez referred to the governing standard which is that only where the facts are so clear that reasonable minds cannot different may be determined as a matter of law he really did not apply that standard in the consumer context and with respect to the issue your honor raised under the u c c section to dash seven twenty five the discovery rule is indeed just one facet of poland is just one aspect of poland and judge gomez's conclusion that only equable a tolling could apply here certainly not something that one determines no i understand that justice scalia in reading the law would might draw that conclusion but my suggestion to your to your honor is that here there was the savings clause at the end not not while i'm standing here your honor but i would suggest that the last phrase preserves any type of tolling and the fact that the matter cruise is quite different from whether the matter is told or the discovery rule extends that the the end date cruel obviously is different from the ending so i would simply ask your honour's to reverse with respect to the erroneous discovery judge gomez concluded that deceptive trade practices of consumer protection law necessarily meant that we're speaking about fraud we're not necessarily speaking about fraud because fraud is not a requirement in order to demonstrate not refuted in later cases expressively provided for a six year statute limitations and these defendants all stipulated that a six year statute of limitations applied in the briefing below is only judged gomez to divine that was a two year statute there is very little unfortunately in the way of legislative history we look for legislative history and one could say well it must have necessarily meant a desire to change and lengthen the statute or  didn't necessarily mean to your clarification to confirm that that's what it always should have been and that out of courts had perhaps reached the erroneous conclusion that it was a shorter period of of limitations i think you could go either way when you look at the statutory history and look at the language of of of the change of that law in the two thousand and thirteen amendments but you know from our perspective it expressed a policy which was not to short change consumers in this type of position and to libera