s the spring of two thousand when the plaintiff myself began looking for a house in the jury area the house was found at this location he had a crack was noticed in the floor in the basement of the house and offer was tendered to with a copy of saying that within twenty four hours of the contract acceptance the seller was to supply the buyer with all reports opinions and receipts regarding any previous lower level cra by the defendants that there was a soil problem at the property the other document that is relevant to this case as far as reassurances that were provided by the defendants is the real residential real property disclosure actually underlined the word settlement they added the scalia there was some cracking in the basement walls due to settlement of the soil but all has been fed exed and quot with those reassurances the house was purchased in june or july of two thousand you know with july two thousand thank you and in two thousand and three some cracking developed but nothing is significant in two thousand and six so more significant cracking and some problems with doors was really present in the house which will require further investigation this part of curious the charter of subdivision and its kind of known for having the possibility of mines underneath that area and investigation going through internet searches in referrals directed the plaintiff myself to john by the name of philip smith with the only department of natural resources contact smith he said you know i recognize that avarice we did a report on that in two thousand did you send me that report certainly i could that record was sent and delivered to me in july of two thousand and six where mr smith indicated that he did a report in february of two thousand approximately four months before the closing indicating that there was a problem with the soil at the property in  indicating a slow creep based on that disk discovery that in fact not all of the reports opinions and receipts were provided as part of the sales contract a suit was filed in august of two thousand and seven at the trial of the case in december of two thousand and nine the plaintiff was asked if she did the defendant was asked were there any other reports that you did not submit as requested by that contract and to his credit the defendant said yes there was a report and i asked that report be produced and it was it was a thirty one page structure reports created by david to support the structure based on the fact that that report was never disclosed a subsequent amended complaint was filed during the trial on december eighteenth two thousand and nine and judge best of all now the amendment of that complaint to indicate that that report was never disclosed the facts in this case show that there were clear and convincing evidence against the ordering the score and that the order findings are against the manifest weight of evidence only a statute of he didn't make a fine and that's one of the distinct problems with this case the trial judge asked both parties to prepare order and so both parties did prepare an order and he adopted the defendants were those findings or is consistent with what the evidence was and didn't make a specific finding at all regarding when the fraud was discovered all he did was adopted the paragraph in the order that said oh the statute of limitations bars his action but there's no finding whatsoever no factual support nothing in the order that tells us what the judge was thinking when he made that decision the order is not based on the evidence that was produced and it's not based on the appropriate law that were also includes approximately five paragraphs where defendants attempt to take safe harbor in the residential real estate property disclosure act saying that if you rely on he had vice of engineers you have safe fixed we were just modifying the word cracks also they argued that all reports were not or the argument is that all reports were not disclosed the defendant say well that's a vague term reports we didn't know if you me philip smith from the department of natural resources he prepared a written report that was approximately five pages long the testimonies unclear whether or not he provided that report to either party or if although it's clear that he didn't provide a means of july of two thousand and six the point was is at the time of the closing at the time of these representations were made defendants were aware of many at least for experts who had told them that there were very problems with the soil an both parties were unclear as to whether or not he actually got a physical copy of the report but he did admit that he had a telephone conversation with smith in i think it was november of two thousand all and river any opinion it doesn't qualify there's no baltic ation on those opinions being orally written whatsoever and the point of the matter was none of them were provided either anyway the they or all or written none of them were so it really doesn't matter if you make that all occasion or not there's also a distinction to be made on the cause and the symptoms of the problem the defendants argue that will we fix the cracks and we represented to you that we fix the crux that is fixing the symptom of the problem but not the problem itself the problem itself is a problem with the school that is causing the foundation to settle which is causing cracks sell i mean certainly there are what's wrong with that and how does anybody know all at once really long that's that's that's the point i think nobody knows what exactly is wrong with the permit and many people have different opinions none of those opinions were communicated to the purchaser of the house and the only representation was that all had been fixed whatever the problems were all had been fixed and there's case law certainly the work all has more to connotation than just one segment of a problem thank you let me see if i'm a homeowner and i hear somebody has got a problem with my base but i'm not an engineer that in the joc report says that we can fix this with the ground that doesn't include top twenty top twenty won't be affects it'll just be something that you'll have to do after you fix the big problem that is with the foundations not only of the house certainly there are new cases provided by defendant to suggest that anything short of absolute complete disclosure is required all cases say any time trying to throw rug over over a problem  into oh we just have a little water problem and it turns out you have a larger water problem you're required to indicate the depth and extent of your water problem not just the one with the example of a cra where my clients to greece's were aware of the crack in their basement and i think it's important to look at chronologically what they did when they were investigating what the issue was there which was structural engineer who gave them an of what advice if it was mine subsidence after that then they went to the soil juniors with whitney thought maybe it was something other than my subsides so compaction soil create these different t science then there was testimony through mr gray's they went back to the structural engineer from our and said all right it is not mine it subsides then what do i need to do and he testified he was at that point i mean they were just trying to reason i mean how often do you see the homeowner going through all of these steps just to make a determination of what the problem is i think they went above and beyond in addition to that they did provide the information to the sell knowledge although on this action was not brought under the real estate property disclosure act it all started because of the real property is because of the  in that that exonerates defendants if they are relying reasonably relying on the reports of contractors or experts regarding whether or not a property been fixed they've argued that because this isn't brought under that action that because it doesn't it says the seller is not liable for any error inaccuracy or omission of any information delivered pursuant to this act if it was done based on a reasonable belief or reliance that had been corrected  or that the problem had been addressed by either a licensed contractor or a structure or an engineer relating to i that field i think the language of it it doesn't say that this is a defense under any that report have to be provided to buyers additionally i think that's also intrinsic in not the issues of just basic elements for fraud claim or negligent misrepresentation because the nature is as you know when one they have there was no ruling as to when he actually when mr paulson knew or should have known that there was a problem with the property and i don't think you see where we can determine other than him saying here's what i know however we look  at the writer and there are statements of well i knew there was a slight problem in two thousand and two i knew there was a significant problem you know when you filed the action but when we look at other evidence it's obvious that she was aware of other problems prior to that he contacted phil smith in two thousand and two regarding the issue of of my subsides well we're going to issue the cracker he had people come and look at the properties some of whom gave him quotes that were five figures but he's saying well he didn't seem like he was that big it's not just i don't think it's just a matter of of of you know from when he knew i think there's also a question of if there was a reasonable time left in the statute of limitations when he did become aware or should have become aware that there was a problem then he still bound by that statue limitations i think without question two thousand two he should have been aware that there was some sort of of an issue if he was going to bring this action and i think it also goes back even to the two thousand and eight because he was given letter from construction mr smith was not disclosed the chocks company was not disclosed the and when my department natural resources was not disclosed none of those were disclosed the question of well we weren't we didn't have to give disclosure because we had a more record and a smith report therefore that basically know all the each other out and we didn't have the problem that's not what the notice and cracking problems well if that's so momentous then the same thing applies to defendants who got a quote from the job company on november twenty ninth one thousand nine hundred ninety nine approximately seven months before the closing saying did with that phil smith was first contacted in two thousand and three when he did a report but he didn't communicate that he had spoken to the defendants until july two thousand and six that's when he said oh by the way there's another report out there in fact there's a cigar you're you're basically saying that's your date i think so yes and a five year consulate think misspoken said a three year statue imitation fraud it's five years and the complaint was filed in august of two thousand and seven within that time period there is a new brooks of the fraud that you lived was committed to the now private was not discovered though until to i believe that's correct really that's correct there is a new case out there that was decided since the briefing of this case remembering the court's attention to