because there's many situations where the judge does not rule he broke the case up over a period of time which is a no no and in some cases he ruled in consistently so i would like you to point out may please the court counsel typically in a residential real estate closing the contract does not contain warranties that survived the closing so to address that problem a number of years ago real estate brokers started to have their clients get  inspections you know unfortunate problem with an inspection is that does not indicate any latent defects so as you're aware the illinois general assembly in order to provide additional relief adopted the residential real estate disclosure act and in that act they allowed that the representations in the act would survive the closing for a period of one year with a very restricted limitation period of one year so you need to do we want to distinguish and i try to in the br between express undertakings in a real estate or any contract where when you have express undertakings there is a ten year statute of limitations in the event of a breach of those express undertakings with respect to the representations in the disclosure act those are not representations that are those are not expressed undertakings in the written contract those only get incorporated into the contract through incorporation and it's our position that when you incorporate the disclosure act into the contract which is which is fine you also have to incorporate into that the limitation period of one year in this case the plaintiff's action was brought simply based upon incorporation of ret representations in the disclosure act into the contract and it's our position that when you incorporate those that's fine but you still only have one year within which to maintain your cause of action as to both representations doesn't affect the tenure limitation on any position is on what the judge was ordering one made those we filed a motion to dismiss on limitation grounds in connection with the areas on the east side of the house which were not originally filed until seventeen months after the closing and those pertain to dispelling stone which you'll see in the court order that had to do with the windows and we believe it had to do with any of the leaks on the on the terrace which was not all not part of the original contract so when the motion to dismiss that was filed several months prior to trial and ruled on prior to trial the court dismissed that area of the house pertaining as to the disclosure act representations so it's the defendant's position in this case that having status at that time the court made express findings the findings were number one those were separate areas of the house that had not been pled in the original pleadings and were not pledged for the first time until after seventeen months after the closing which was after the expiration of the limitation period and plaintiffs argued that that should relate back in the court after reviewing it and after hearing the arguments and the briefs found that that did not relate back so at that juncture in when he allowed evidence under count one for the breach of contract and that was over our objection we raise the objection at trial that book you've already dismissed ahead there's nothing left to incorporate in terms of count one as to those areas you dismiss we weren't arguing as to the foundational role and we weren't arguing as to the upper of because those areas were properly pled at the initial complaint and were filed within one year of the closing we filed the motion only a to those new areas of the house he agreed on count one on count two the kind of the disclosure count but then he allowed evidence in on count one and i believe even in his word or that he entered he found that the disclosure act gets incorporated into the contract count so that was his justification we've argued that that was there that he shouldn't the march fourth order that was the where the march fourth was the motion to dismiss those allegations from count two  were there at trial and is this your position from this position were there a trial and any damages there were properly able to be considered by the trial  proceeded on those two elements of damages the foundation wall and the upper rough and the evidence showed that there were certain out of pocket expenses that the plaintiffs had paid for repair of the upper roof as well as some rider damage that had occurred in the interior stemming from that leak there was evident the expert report that the plaintiffs admitted as to the foundation were all we have jacked into and asked that that be stricken because that didn't pertain to the proper measure of damages which we believe the is clear that the measure of damages is the cost to repair it is not replaced with new and the terms of the damages that were actually introduced into evidence that estimates but how much had spent to fix problems that they say were not properly disposed they spent no money on the foundation wall and they spent as i said about three hundred to repair the right they spent about eleven thousand or ten thousand hours weeks later to totally tear it off and replace it and i believe the evidence showed expenditures of maybe ten thousand roughly because if we didn't get the breakdown about ten thousand to replace some damaged walls on the interior from the original leak when the water rushed down the walls so they did do some drywall work they did do some flooring work and i think that was less than ten thousand dollars so the total that they expended aside from washers and dryers and stuff like that absolutely were not consistent when i conceding that they'd ever given a proper damage case as to the foundation because the evidence was that you could excavate in the area of the leak repair the wrong repair the drain tile if it was bad and that would be a few thousand dollars the plaintiffs estimate was twenty eight thousand dollars to dig an entirely new drain tile system all the way around the house even though they never dropped a camera down just to see if there was a problem so there the evidence that was admitted was replacement costs as for the laughter my thirty five years your honor is that the disclosure act is the disclosure act it is the law and if it's a false representation that's made and that's what the judge found then they should allow some recovery for that rough if it's fraud the answer is no they had an inspection report the inspection report disclosed the problems that's not fraud but the fact that the only general assembly enacted a special act that covers less that says if you make a false representation of a company is allowed then i'm not going to stand before this court and say now they knew about it they don't get anything i mean to me that's just not fair that's not right so i've never argued in this case that they shouldn't recover anything for the epigraph and we never agreed that they should recover something for the damage to the interior walls when the flood came in w have argued though in which was a fact question that it doesn't matter before this court but the inspection of the roof of prior to the closing revealed that there was some minor leaks somewhere but no specific area but there wasn't anything that said the  the time of the inspection that's something that fortuitous leigh occurred and obviously had a terrible time but the amount of water that the plaintiffs have described could come in and i don't tonight what they're saying it was a rod a rod or that didn't come through some minor leak that came through were the seams on this rubric thing actually better than open in the water rushed through that didn't exist at the time of the closing and it didn't exist at the inspection because there inspector crawled all over the roof and inspected it and his statements as to the roof were that the problems is a case that started with an issue with the river which was a minor damage ok and anything that went wrong with this house for the next four years the cleanest brought into this action through amended complaints they're seeking bayside five hundred thousand dollars in  compensatory damages and they were seeking punitive damages of the same amount they blew this case way out of proportion if you're really looking at the prevailing party in this case your honor i believe the defendants were the prevailing party if this court reverses as we believe it should if the plaintiff's damage in this case amounts to a defective rose and there will be three hundred dollars or five thousand dollars or whatever it should be awarded two hundred some thousand dollars in legal fees for a matter that should never have gone this far we believe it was inappropriate to bring into this case all these matters that pertain to things that might go wrong with the house i mean we all know that when you buy a house it's got one hundred year old foundation and it's not a new house things will go wrong but that doesn't mean that after the closing because you have one that you might be able to take on to that every conceivable problem with this house over the next four years is suddenly a defendant's problem and they should pay for it if you look at dixons testimony when he went through he was arrested engineer you look at the windows and his first walk through and he said there's a little nothing wrong with the windows but on the woodwork around it there's some water leaks that you should repair plaintiffs did know repairs and as a result when he came back year and a half to two years later he found that because of the moisture that had been allowed to drip on this for these two years that those seals had now worked in the windows needed to be replaced that's not a defendant issue that's a plaintiff's problem there was no moving this house at the time of the closing in the plaintiffs did nothing to invest really dry out in some fashion you know we all go out when you've got a lot of problem you get those big dryers in and you blow the place dry their own witness testified that you don't get mail without waster and yet the plaintiffs did nothing to correct that moisture infiltration problem for years in fact the evidence was clear and i asked to reopen the evidence they waited six years before they implemented the repairs which constituted the back of the damages in this case they wanted to after judge but quits entered his were in june fifteenth then they mysteriously go out repair the house for a trivial sum of money and put the house back on the market we asked that the evidence be reopened because at that point the final judgment had entered and the whole issue in this case was what were the damages what was really spent to repair that place and the plaintiffs had the opportunity to repair over a six year period they didn't do it it's not fortuitous that that house didn't get repaired until after the judge and his order in the court is mediated you know in the number your honor it is impossible to come to that number without compromising damages and it's impossible to come to that number without taking the areas in the house for which no recovery was allowed to conglomerate that there's no question in my mind that judge parker which was trying to do what he thought was the right thing and a king solomon station they're seeking a half a million dollars they're saying this is not worth anything i'm going to cut this baby somewhere he did not give us any delineation of what the damages are which is totally improper and what was clear all that we thought was he allowed their expert witness to testify as to estimates that one estimates prepared the ordinary course of business these are estimates that this isn't like a doctor's report or hospital reports where a physician comes in later and says based upon the record these are what my thoughts are these are estimates that were prepared silly for litigation that were never used no one ever did the work and he allowed their expert the architect come in and testify that what was set forth in the estimate constituted a reasonable cost to do the estimate work but the architect never looked into what work had to be done the plaintiffs own mold expert testified that about two hundred feet of drywall had to be repaired two hundred linear feet to get paid for and then they brought ed guy that i don't want to talk about what i believe his capabilities are they brought in a mill guy to say that fourteen thousand feet of drywall in this house had to be removed and when i asked their expert at the tech you know fourteen thousand feet have to be removed he said of course not i just based this on the estimate that was put in front of me that's clearly hearsay and we moved to st we moved the objected to the testimony at the time we moved to strike it at the end of the trial and the judge allowed that in we don't believe that you can bring in an expert witness to testify as to hearsay estimates that were certainly prepared for litigation these are documents prepared the ordinary course of business and with respect to which the the the expert doesn't testify as to his own knowledge he just says that what they've listed in there that's a reasonable dollar amount for the work they specified but i have no idea what work needs to be done on this house we thought that was totally inappropriate and that should have been allowed to be admitted into evidence if you take away the testimony of mr corella still architect there's no damage case they have the obligation to put on two aspects on a damage case first the proper measure of damages and then we mounted damages i don't dispute the amount of damages doesn't have to be accurate i mean that's up to the court to decide the amount but they have to come in with at least a proper measure of damages they have to stand before the court with witnesses that say these are the repair costs for this property not move without putting in an entirely new facade four hundred seventy five thousand we have putting in a entirely new drain tile with twenty eight thousand we're not putting in all the windows on the east and south side of this house that's preposterous and we believe the judge brack was here when he allowed that kind of testimony had the pla fs in our view did not put on a proper damage case and under the law your honor i don't believe that's my obligation i don't have to perfect their ears by putting on what we believe are proper repair costs when they haven't put on the proper evidence in their case in chief and we knew for a long time they were going to do that because based upon the discovery based upon the two thirteen i saw all right from day one they were only going to hit us with total replacement cost so i knew there was no repair test for we're going to be there ok so they're entitled to arguably they get three hundred dollars for the f they get some for the damage to the interior walls which could be five to nine thousand dollars they did nothing for the foundation because they never repaired it never proved what the cost was to repair so you're looking at total damages in this case  somewhere around ten twelve thousand dollars all right thank you thank you this  you i hope you can hear me better hit the court here as i wish to address those points that you raised just a smidge with regards to the consistency issue first and that ties into some of the issues with regards to the relation back issues i think that there is some confusion in this case that the opponents have with regards to the difference between claims and damages in this case after the closing we filed a complaint alleging focuses of action the images and you didn't disclose them i took a part in your own inspectors told us what most of these the images were in the record certainly you and i would hear more in your original complaint if  from that ruling and they're saying you're stuck with the ruling and the run up to address that point and why the judge's ruling is consistent because it appears that i think you want to say it looks like it takes it out when you put it back in but if you look at ultimately gave damages for in his judgment he lists in say as these other things i'm going to give you damages for spelling break and windows are not included they raised these issues in the post trial motions judgment ruling he states that he provides that for if you see on page four he lists this and this is what he stated at that post trial hearing he said i provided damages for the leaking that came in the replay out of the  they were left with four hundred eighty thousand dollars how much money was actually spent before they sold the house the paid repairs they haven't sold the house yana the page repairs for twenty eight thousand dollars and mess with them what twenty eight thousand dollars for the paid repairs they house they repaired and did that they had to do some replacement on repairs with regards to that basement they try to waterproof the basement but those where when we brought the experts in the problems reasonable for reasonable cost is four hundred eighty thousand dollars and the actual about expended by your clients was twenty eight thousand dollars and what we're talking about is that they actually spent only five percent of honor and also it's a go it was going to require substantial money to fix that if they were hoping to recover from this case and fix that housewife so that's one of the issues that we have i was the one to trace and just make sure that they're consistent here is that the judge been repaired at that problem that eve but it becomes a small amount of one hundred dollars with the damage it is no longer an issue there is no longer anything that is required notification of a contract because it's been res concealment there was evidence put into the record two months prior to this inspection there was substantial damages inside the house from what those damages had blue painted over and covered up right that inspection the assurances in conjunction with context of bet so which of them concealment has been upheld numerous times and cannot be shown as being against the manifest way to be gathered and here that's what they did they got the assurances those a don't require the courts to come up with an itemized number down to the penny if the damages are showing to be existence and that's what happened in this case we provided dollars to bet you can see there she is calculating he's including certain elements excluding the elements and it's that is allowed we don't require him to come up with an absolutely specific amount less so with in this case they chose not to produce any or put in any expert testimony with regards to damages what does they turn right and forward they have absolutely they had a an affirmative defense of mitigation of damages and under the case s to the affirmative defenses in this case they did not obtain a ruling on any of the ephemera defenses and i don't think that that's copy before the court i think that that has waived as well with regards to the nature of damages issue the court in this case use the correct measure of damages which is the cost of repair again in his judgment he says what should have been and i just provided is to repair the house to repair the tribal to repair the leaks to repair the basement he doesn't say and council asserts and not the argument he says if you're going to replace a component to repair a house fete a new roof as in this case you does kit that is a replacement cost you provide no case no one supposes that argument we you know i've lived with this case a long time i have a right to say but that minute confided to what counsel said when you have a contract that says give us written notice of the problems and you're required to give us not only a written notice that you found problems but you have to give us a copy of the inspection report and there's no denial and council stood before you and said they never gave that notice if you did that notice to a seller a property that says look we had all these problems with the house then the seller knows one of two things either we adjust the purchase price or we kill this deal because we don't see that's the issues where the seller at least has a chance to go out and try to find out what the problems are and go ahead and fix them but what we've got here is we have buyers that this was their dream house they stress was their testimony was they didn't want to do anything that might screw up this deal so they went ahead and close even though they had a detailed inspection report that listed the problems and they never gave any notice to the seller sellers as took this whole list of problems that they knew about they are broader ok they reactors waiver in the form of arguments that are made by either side in the briefs my question that the damages here if the fires  water from there you know if they don't comply with air well if they don't get the seller a chance to remedy reduce the price or whatever isn't everything way in my view yes they should get nothing and we move for a directed verdict at the close of the case in chief because we felt that yes specific questions on the twenty eight thousand and on page eleven in my brief which is also in the record i just took the damages from their exhibit and put it in at twenty eight thousand was composed of approximately five thousand three hundred dollars they cite for appliance repair which the judge on one part of his order denied but still included in the twenty eight thousand a damage that's the rule of was nine thousand one hundred forty eight dollars so i branded that office ten thousand dollars for a brand new rough they spent thirty five hundred dollars right after the initial problem to bring in a maintenance guy to repair the dry wall to do the  bill which is in needs of this for fifty five hundred dollars thereafter they decided that they can just do anything that they want to this house and repair things in the house and do work around the house and they issued one two three four five six seven eight nine ten eleven twelve thirteen different invoices from their maintenance guy which totaled about eight thousand dollars something included as what they said were damages for the for the problems so if you really look at the upper roof what you're talking about is he bites out fifty five hundred dollars for the original repair the walls and the interior and approximately ninety five hundred dollars rounded off to ten thousand for an entirely new rough that's their total out of pocket it's not the twenty eight thousand dollars that the judge awarded we didn't argue in the a lot of that the brief because frankly if we're talking a half a million dollars i was going to be arguing about pennies here ok and i wanted to make sure that we spent the limited time we had not appreciating the big issues that's the breakdown of the damages i don't agree with counsel that you can have a general judgment i don't believe that's what the law says and there were no way can they breach of contract action there's no question they were both parties introduced varying experts to testify as to a certain repair cost and they because they have difference of opinion  and what those amounts are clearly in the court can look at those and somewhere in that range come back with a with a judgment based upon his looking at all the experts as to a repair cost for a specific item he can't take what he's trying to do here and five six different areas of the house and just throw out a number of the bears no relationship whatsoever to where any of the evidence was a trial and if you look at his judgment he entered he says that the damages  for the foundation for the damaged or i will mildred mediation in the upper bedroom master bedroom and headway the number one the total mold remediation in this case by their own expert it was two hundred feet you're talking with a couple thousand dollars that the individual that they brought in to take out fourteen thousand square feet of dry wall we respectfully stated that wasn't a witness a trial and it's obvious why they didn't call him a trial but to but there's no relationship that the rest of the numbers if you add them up com