that afternoon it please the court mr wilcox my name's chris meyer and as you know i represent dennis and shelley evans in this matter your honour's this case involves a three count was dismiss count my three without ever being asked to do so by opposing house it rationale for dismissing counts one and three is because in his opinion i've laid out pretty extensively i think in my brief about why i think so i will note that unfortunately sometimes i refer to paragraph eleven as paragraph nine the structure in and organise with the plans specifications and proposal and submitted by contractor and will do so in a professional and workman like manner that is a promise  garage did not become noticeable i'm not saying they didn't exist but they were not noticeable in that first year of construction and more notably is that there weren't she actually  all concrete work judge heard really was that since the warranty section that section of level of the contract was unambiguous that pat  paragraph of a five page contract is unambiguous and did not look at any other provisions of the contract and determining whether that paragraph in itself could be read it conjunction with with other paragraphs of the contract and so that the track could be construed together never reached that point is the focus was on this one line paragraph of a five page contract even if the contract itself if you look further and i have cited this every section twelve of the contract the second paragraph it clearly states that any warranty securities or obligations imposed on the contractor under this particular written contract and any remedies available to the if there are other provisions within the contract itself which provide for more a wider scope of professional work in my conduct such as or section two track section of eleven section two and not be read together if they are deemed to be the same thing if that were the judge's decision then he'd have to say well ok the contract is ambiguous the other thing to note is that a contract was drafted by the contractor that defend in doing so any ambiguity has to be construed into the drafter of the contract in this instance if it were going to construe it if you're going to treat this contract as ambiguous because of the differences between section to section eleven section let's gotta go because it's more restrictive it excludes concrete work it limits the time one can look sections can be read together because there is one thing in that section eleven that is not in section two which imposes a self imposed on the contractor by the contractor the way that i understand it guaranteed and unfortunately i couldn't find it in case of loss to one where the other but if you're looking at a guaranteed workmanship you're saying if there's anything wrong with what i've done within a year's time if they workmanship or anything happens if there's any effect in that house i stand behind my work those are the words used by one of my witnesses  in in support of our case which means that i'll come in and i will fix it i'm responsible and stand so if we look at that way then we say the contract is not ambiguous that you can be right if you have other and with respect to the one year there's a guarantee now granted that tape's out the concrete work has state any either in his order or very discussions that we had regarding my motion for reconsideration simply decided that if there is to express warranty then the involved one being a contractor who builds homes for a living the deals with blueprints deals with specs knows those are poor him to follow so he does a good job in the house and then you have a homeowner or a protected homeowner who simply wants a house free from defects there's nothing in the law that says that under those circumstances an expressed warranty of you start to see a little spec only come out and within two years you look like you've got a gravel driveway that's a situation that was presented to the evidence attorney he was aware of that moisture problem and simply chose not to deal with it chose not to try anything you know order to get it resolved that in itself to me is wrong the so whether we're talking about five or he expressed warranty or breach of the contract all of the counts of all the same allegations of what occurred front of me he's asking for that but i need to talk about that because the ductwork was not required under the contract no once in dispute  that the repair that was done by mr freeman in an effort to cure what he saw was a voice problem which initially claimed it was talking about the windows being property st but that was repaired by him trying several things in the basement and his estimate included not only insulating the main trunk of the basement which was specifically not in the contract he also put in a vapor barrier wall there was already a paper barrier bayern in order to make his paper barrier work he had to go around punching tens or hundreds of holes in the existing vapor barrier so they would trap the water and he did that he didn't know which of those things were responsible for curing a moisture problem which this particular case or is also evidence of moisture in the house can be caused by a right including the fact that you use materials to construct a house which let moisture go after bill for a period and you also don't have any control over someone who best blinds on their windows and chooses to close then open them and sees condensation there because we have a difference between the heat in the room and the heat putting it again he he found the other vapor barrier and had to punch all sorts of holes in it i was the paper barrier with the function so we're not exactly sure how that breaks down in terms of manner and i believe you have it shows that we did whether it's under count one count two or three the allegations of breaches the same and each of those case i would also point out that even if we're talking about a good workman like manner to reach the period of the warranty and the period before that was shown where if there's another round her reason the court can use that for the next thing we have is that there's a discussion of swirls in the garage itself meaning that apparently the finishing left some marks on in an area in the garage that are swirled type marks it's clear from the evidence that it wasn't structural it didn't create use problem punch list included mr roach comes up the first time and doesn't know any problem with it and then comes out of europe later and sees a problem with it which is approaching the two year mark i think is what the point is communicate several different ways but you can also have someone that puts chemicals up drive away and you have no control whatsoever that that's the reason for the solution here so i believe work in a firm the trial outside on the driveway itself the court the trier of fact would have to consider whether the spalling was actually ha's by per each of the contract and that's the function of the things that may not and i hurt you should not be included in the cost of room remedying any problem which the trier of fact finds was a result of breach of this contract under whatever  didn't know that those things were necessary and that on the cost of repair or drop mr roach testified what he would do which would be involved cleaning it off writing  and then putting up patter as a decorative static he didn't say what the actual cost of removing and replacing the drive was and the only testimony on that issue came from the defendant we indicated that cost was fifty four hundred dollars as opposed to the several thousand more that mr roach was proposing so for those reasons if a court doesn't only two independent people within the construction industry have recall they were called by me they were not hired by me they were called to ask people who had looked at the  situation at evans home and gave their best i opinion as to what the problems were and how they could be solved the facts are going to change the facts in this case are within the i believe they're there for it to do is one through thirty two but in all there were twenty four it's actually admitted evidence most of which are for the graphs post photographs aren't going to change  all one has to do is look at the photographs to determine what duration the house was in at various stages winter of oh wait oh night the winter of only nine or ten spring of ten and i even  driveway and in the in the garage secondly i want to talk about the fact that all this stuff about how you can't hear in t concrete or warranty concrete because  roach the best nothing but concrete work and concrete finishing was in the finishing was in the work product of the contractor he's the one that messed that wrote mr roach says we don't have to replace the concrete you know the base is solid that's good what we need to do is redo the service so it was the finishing work that was messed up it's not the concrete it's not the product it's the workmanship that was messed up that's been glossed over and there was no evidence either way on that thing the evidence was clearly that there was a problem there third thing i want to mention is that our aesthetics totally unimportance when you're asked when you and someone one hundred  sixty thousand dollars to build a home plus i have a lot of them are statics nothing they mean nothing so you can have a garage floor that has these swirling patterns all around there because somebody doesn't trip on reference to this so oh my sure come on you know there's at least fifty pictures and there's no question that there is a more it's not poised or it's freezing on the inside of a that had nothing to do with the moisture problem that were solved by mr freeman we are asking for the amount of two thousand two hundred sixty five dollars and thirty two cents that's specifically stated in my brief and that's taking out also let's take into consideration those photographs also show the sprawling and the chipping away of concrete with in the garage floor itself in order to redo that work mr  thousand nine hundred sixty eight dollars for their driveway he estimated that the work would be seventy five hundred dollars he was asked by mr wilcox wolf but that yes and says well how much of the person price better system within five hundred dollars that leaves a seven thousand dollars then i asked mr roach well with there be an adjustment on your purchase price based on when you made this quote and the time that it was that he said it would it would probably rise forty six percent per year so we take the seven thousand dollars and we simply have four percent for one year that brings the amount to seven thousand two hundred eighty dollars so that's i don't know how many were mine comes in but if you add those two together you're somewhere around twelve thousand five hundred dollars for the garage in the driveway class comment i  is that mr wilcox would have us believe that a person contracting with a contractor is somehow responsible and balanced by the plans and specs which are for the contractor for the purpose of building a good house that's not what the warranties are all about or in future about workmanship because there's this inability between the two so who is severe the responsibility when that working shift