fourteen zero one petition for relief from judgment based on newly discovered facts this is not an appeal of the final an appealable judgment that was entered on september fifth two thousand and seven and the respective notice of appeal of the parties meant to address errors of law made by a trial judge in the prior action or attacked a decision one feels that a judge got it wrong that is the purpose of appeal fortunately cannot be used as an appeal substitute i will focus pointedly today upon the crucial point about which there can be no reasonable debate the lack of a determinative new fact arising after judgement as to any of plaintiff for claims talk taken fort later he actually had more information or to prove up the allegations that they have filed in two thousand and five and the judge then changed his mind that's not there right now your argument on the my my argument is that this information came to light in the prior action this was july before the september two thousand and seven judgment from which they seek relief and in and it was party to the court in the original action and it is not that is not fortunate one was not the proper avenue plaintiff had a proper avenue in the appeal and plaintiff did appeal through the appeal again i just instead is not a pieces for coming in then on to fortune or one and doing what could have been done with could've been taken care then just lift the worry about the appeal truck you appealed it and then the court says well these are really discovered facts we're not going to let it go because he abandoned his appeal so he'd he would be in trouble so you first of all finally there was a true six one five response just saying what was in the complaint now that's not the type of father it's going to give relief and therefore we ask this court complaint against opt out this court has stated as the supreme court has stated that whether or not three or four a language is granted does not affect the finality of the judgment that was entered on december thirteenth two thousand  it seems that optimised problem with the district court for me circuit court is that it didn't come right out and say i didn't take the allegations in the complaint but there were many complaint is true and therefore the two fourteen petition should be denied that's not the standard i don't think the circuit court has to say i made an error in order for it to grant a two fourteen zero one petition elm now with respect to it wasn't until after final judgment was entered on december thirteenth two thousand and six that kelsey followed his answers to iraq tours in his answers to iraq twice found in march of two thousand and seven he states there w to this court that those are older records containing no new facts it's true from the complaint that was filed in two thousand and five in the amended and second my complaint that was filed there after an even the third of medicare point we knew about the problem is we didn't know the scope and we didn't know for it we don't know the frequency we didn't know the timing and we didn't know the scope of optimism involvement those were on the facts and as the court has noted optima repeatedly insisted and their motions to dismiss in the response to the motion to recommit for reconsideration and even in a two forty in their motion to dismiss the two fourteen zero one petition that they had no involvement prior to two thousand and three so it must  as we suggested in our place it would have been appropriate and would have been within this court's right to dismiss the prior appeal i had we sought to continue it now with respect to the negligent performance voluntary undertaking claim optima says that's not before this court because in granting the two fourteen zero one petition the court found that with respect to this claim the new facts would not have changed its decision anyways  entire appeal and its response to all across appeal on the issue that these facts should not be before this court we respectfully disagree alm optima does not challenge the  sufficiency of the allegations in the third amended complaint regarding negligent performance of a voluntary undertaking it doesn't challenge the allegations of a fraud and with respect to the only consumer fraud act claim it says that the complaint upon the undertaking now kelsey has repeatedly stated including in his callan claims that he didn't disclose on the residential real property report the problem with the basement because optima told him it was fixed optima clearly made this representation misrepresentation to kelsey our knowing that the problem wasn't fixed and it's worth noting that after kelsey called up to much to inform them that he was putting the house on the market optima actually increased the number of visits to the frequency of visits appeal was filed is that no one had any expectation that the problem with the drain tile system in the home was going to go away in fact i aged that several people have suggested it to every third person every third person who received the residential real property disclosure report arm so and muster a question i  this for the judge to say that there were facts that would change the outcome of the voluntary undertaking count as to the fraud allegations fraud allegations raise for the first time in the and the court says its opinion that you don't state a claim for which relief can be granted you can appeal now plaintiff want the same exact probate on and we want to follow the exact same car codes and to say that that somehow the outcome would have been different on a two six one five judging these are sitting on the face and say that they are the truth could there be an error of law involved not a mere fact because the allegations would have been different in some form as to what they are now putting before this c december two thousand and six there was a motion to reconsider that was denied in june of two thousand and seven with respect to the standard of review regarding our cross appeal our cross appeal focuses on issues dealing solely with legal finally i would just note that with respect to the motion to dismiss originally the original motion to dismiss in front of the court was a two six one five two six one nine and the circuit court actually had to correct itself because it granted mandela's motion to dismiss on two six one five grounds even though it had only moved on to six one nine grounds so the circuit court has made a bunch of errors it has to its best