review issues that were not included in plaintiff's notice of appeal and argues in its brief in their brief issues that were previously decided legal theories that the plaintiff aband court ruled in favor of the defendant but allowed the plaintiff to repleat which we have done therefore we really pled the issues in the claims in the th amended complain restatement neither of those claims would be defeated by the to minimalists argument as neither are premises liability claims so i w that defeats the claim defendants response to it argument in it defendant as i already said it miss the facts in the in the caved in the claim in they must be taken as true if the defendant supplies the defense that negates those facts the motion  necessarily fail so with that said arguing that there is no contract upon which the tour duty could be based must fail because it negates it is sufficient if it is made by the less or after position is transferred now here we have facts to demonstrate that the covenant was made at the time the agreement was made based upon the defendant crystal testimony so that is that's kind of irrelevant rd the defendant challenge count one based upon the fact that plaintiff did not plead a breach of contract claim tort duty predicated on the relationship to the parties in the contract and therefore plaintiff need not need not plead that if defendant wants to pursue an affirm defense there is no contract that's obviously well within his rights but pleading there is no contract again is violence is of the boundary set forth by save conditions of sept subjects the lesser to live bill and he only if he does not exercise reasonable care after is had notice of the need of repairs here we have testimony from the defended saying that the the ten advised her of the hazardous condition on the premises she fixed agree that repairs needed to be remade needed to be made however she delayed making them because it was winter and the weather was poor and she was waiting for the weather to warm up that is her testimony in in the in her deposition transcript so the question really is a question of fact as to whether her delay in making the repair an apartment to be in contracts to keep the apartment good internal repair upon notice from being be notified say that the ceiling in one of the rooms is in need of repairs the condition does not appear to be such as to threaten immediate fall of the ceiling well be his wife in a guest or eating dinner in the room the ceiling falls and injures all of them it is subject to liability to be his wife again to guest but only if the ceiling falls after he has time filing notice from b to make the repairs if he exercises reasonable diligence and care i believe that is exactly what the situation that we have in this case the defendant was notified of the hazardous condition on the premises  delayed making the repairs because of weather concerns it was winter time this incident occurred on march th the question then becomes was it reasonable was that amount of delay reasonable court delved into the issue of consideration between the parties which again goes to the existence of the contract agreement whatever you want to call it which again cannot be my recollection is crystal tested by that marlene told her that the the board was raised and i think i read it also said the same thing to i think of crystal and another member of the family but to your question if if i i don't i don't think it makes a difference because because the defendant was on notice regardless of how they received she received a notice she was on notice and that triggered her duty of prepare yes to the agreement between she and marlene so no i did that to answer your question i don't think if it matters if irene was the only person that made the  the residence which is owned by crystal so she actually she's deceased as a result of this occurrence on the property so this is so who's bringing this ok yes unfortunately that complicates the matter because everybody is related but that shouldn't matter in terms of who has a duty to do under the law  defendant's assertion that there is no consideration for this agreement in the trial court's entertainment of that argument as was said for them in the brief and i don't need to be labor the point here  number one as i said twice already the contract or the existence or nonexistence of the contract is is ripe for a affirmative defense but it's irrelevant in terms of the six considering the six hundred and nineteen dollars motion that said consideration is is not for the sufficiency of the consideration it's not for the four to determine it's to it's for the parties at the time of the making of the agreement and this agreement had been in effect for the ten years during marlene's residency  so i think that's kind of a red herring i'd like to get to the final count of the complaint which is the voluntary undertaking count which was addressed by section two  fifteen motion which for failure to state a claim that motion presents a question of whether the facts alleged viewed in the light most favorable taking all wellfleet of facts and reasonable entrances  sufficient to state a cause of action in ruling on such a motion the trial court considers only those facts apparent from the face of the pleadings matters subject to judicial notice  admissions in the record here we have a circumstance where the trial court ruling on a two thousand six hundred and fifteen motion exceeded the parameters set forth by two thousand six hundred and fifteen and specifically stated that he was taking into account all of the pleadings all of the depositions all of the hearings and all of the information that he had gathered from from from the hearings before and good morning justice as all three and our counsel may it please the court let me go to the issue of this summary judgment and de minimus and the facts as this court well knows apple e different than the apple and the apple he may raise any issue in support of the judgment that is supported by the record this case and this record does come before you try to plead some other some other theories but the court this court can consider the demand as issues and can consider the summary judgment we've cited two cases to this court which i think this court already know has you look at the judgment as the adjudication the adjudication at the trial court was in favor of the to defend the ants and this court can consider the judgement in favor of the defendants supported by whatever is in the record it's clear your honour's and i think counsel knows this full well is undisputed this is a one inch or less elevation array's elevation discrepancy in a walkway in an outdoor area fully covered by the demand mr rule and that provides support for the judgment in favor of the defendants there one of the factors as a matter of fact i don't know that we included this in our brief i may have made a little note to myself if you can't see that but i this was raised in one of the arguments person is not one of the aggravating factors so yes yes your honor aggravating factors can be considered if their plan and if they're part of the record we all know marlene was obviously grandmother t day so you're out of the plural that is an additional ground for judgment in favor of the defense let me address these cleaning issues which are obviously part of the briefs and by the courts only applies in very narrow circumstances into circumstances and particular one if they allege a defendant let's cristal my client has increased the danger increased the risk that is not alleged here that is not part of this case or two if it is a situation where the injured person did something different in reliance reliance being the word and we don't have that here the courts go further the burr going vs much of case cited in the briefs pretty comprehensive discussion of this issue says reliance cannot be claimed by the injured person if they are in a position to be equally capable of determining the actual facts and clearly that is marlene throughout the record let me address the other count this count one a legit breach of contract to fix or repair pleadings wise course we challenge this  agreement of a contract are not play not played in count one it count one fails under the pleadings because the elements of a contract term of the contract consideration paid terms as the agreement or at least seven it's in a brief quote likewise the rule this is three hundred and fifty seven this rule has no implication where there is no contractual obligation but merely a gratuitous promise to repair point i want to make probably the reason why now we're here for oral argument is in their reply brief account lanch the plaintiff in this case trying to make this argument which is not supported by the record they tr overcome that duty is barred by the demand this rule because it's a tort duty so therefore your honor counsel thank you for your audience today to hear these arguments and we pray that this court  mr i i would like to respond to just a few things counsel counsel addressed number one it goes to my initial comment when i and nineteen it is clear that those rules have been interpreted time and time again to focus the trial court's attention  personally can't see how that works but that is their position and they're entitled to it that said this appeal does not reach open or really litigate the motion for summary judgment it but it doesn't authorize this court without a cross appeal opening across a notice of appeal from the defendants challenging the trial court's ruling on the motion for summary judgment motion for summary judgment was like a set addressed to a premises a traditional premises liability cause of action we don't have that and that was not what was before the trial court now the trial court exceeded its authority in several ways you have to accept on a six hundred and nineteen motion the facts well pled in the complaint is true you cannot go he the trial court specifically said he was exceeding those boundaries the supreme court has said over and over you know rules are to be followed they are not plaintiff's point of view here the foregoing your case i think that's the way you say separately there was a ample reliance and went on to reverse the trial chords grant of summary judgment and allow the case to go to each of the court to determine you know whether the reliance was reasonable or not we have reliance here and we have a pattern of ten years of you know repairs being made upon request based upon the additional agreement between the parties at the beginning of the tenancy the n w case also supports the plaintiff's point of view here you know i i believe that there was definitely a voluntary undertaking on behalf of the defendants and one of the points raised in both