case and that town be equally divided if the apple app wishes to reserve time for rebuttal he may do so it is our goal to finish within that thirty minutes how you have to go a little bit over to make sure the parties are fully able to this is a rather unusual situation because when we look at the statue imitation and the company's stash of repose we need to keep our focus on the fundamental principles that why certain fundamental principles include not having claims become stale including the loss of evidence opportunities for either a proper prosecution or defense at the same time it should allow up well just as there are with regard to knowledge we knew of the existence of a particular party in this case the part however the problem is that the a part of was identif throughout the history of most of the history of this case as a construction manager as it vies not constructed so there was a constructive well the at the outset it appears to be the within the discretion of the owner who may be acting as his own general having a construction manager may be of some assistance we're talking about a situation where oh we're not sure exactly follow up on that point the the curiosity about this case is that it's pretty clear that in illinois there has been no cause of action recognized against the construction manager as there has been some cases that suggested that particularly the minton casement inverse richard true that if you have an insolvent general contractor the aggrieved homeowner consumer the responsible sub contractor even in the absence of pretty we have not seen the case where that concept was extended to an insolvent developer who had a general contractor because manager not constructor or your structure manager as biased but rather it would have to be a claim arguing that minton should be applied by analogy to a representative of the i want in this case the owner being the developer could have been wearing the hat as acting as your own g c joe concha so that's resinous a complicated situation because it's obvious he was with  the developer but that at that point in time didn't necessarily allow us to proceed against the person who at that point was only known as a construction manager and there was  project we are part of what acted as a general contractor so that look at that again at the time that going back before that long before the deposition that the application for a permit and the permit itself does the burden here what you knew or what you should have known with with within the exercise of due diligence all you had to do is file a freedom of from the from a ship request at the time that you filed the first complaint and you would have known right then and contract or construction manager not constructed so to be diligent about the situation we really need to develop the evidence more than just two pieces of paper with the city that we hypothetically certainly could have gotten request but those two pieces of paper alone i don't think would satisfy our obligation to be sure we had a credible case alleging that you know general contractor status of your part you depend heavily of the experts there is a normal for the party to know that this company could have been responsible i'm sure that the your point in a few minutes going to stand up and say that here this case is different then mi have the statute begin to run before the association could have brought its claim either under argument expansion of minton or more importantly the newly arisen claim possible under thirteen twenty four that argument is that a sickly that under the minton extension approach it was due diligence if you count the numbers of days based look at the discovery that was taken in terms of getting the documents in terms of taking this and about this is deposition and ultimately filing the fourteen seconds to the fourth a minute complaint those occurred within a matter of literally one month after another so that case was decided even after the fourteenth assuming fourth the medical stuff and we should have been allowed a reasonable amount of time based on that case to bring a claim against their partner in this whatever theory it we're going to pursue why didn't they take a deposition in five years they say that they can't rely on a building permit for their theory they can't rely on the application they hit it to their to diligence under rule one thirty seven what did they do they went to final judgment against the developer what did they do years earlier they sued the parties under the mitten theory who built the windows and who insults they received their own expert report in september of two thousand and five from was cheney saying that the repair cost could be eight million dollars they filed their complaint november of two thousand five the original complaint and in it they said that the developer had not properly reserved in the condominium fund for regular expenses or for the cost of minute complaint the developer distributed four million dollars which week two thousand and three in two thousand and six a rich five hundred thousand was distributed in two thousand and three so there was nothing this the board could have done about it up in their first amended complaint in july of two thousand and six they say you know you know major quillan that the developer is insolvent and that the developers representative had told them that the numerous occasions and we have to do about them they added is defendants the members of the limited liability company who is the developer and members of the member who is was a l l c it first level l l c second level in a number of john doe in one month later after a developer did that what did the world do with the boards to the window contractor and the contractor general the building application if you look at it is a form of preprinted form it doesn't provide anything other than up general contractor and that application is dated in advance of the contract it's not uncommon and in fact turner construction working in this town for years always used c m a's there it's their methodology the developer developer chooses how they go about things obviously a general contractor who makes a little more money usually didn't see a major because they take a bigger risk they're responsible for all the subcontractors it responsible to build that building for whatever it is forty million dollars whatever the cost that the seam aging is is very different i wanted and want to be certain that the court understood fifty argument there the board is making reporting what i'll call a change in law in quotes i don't know that it was a change in law but that the practices that they reference we brought their decision to the trial court's attention here our motion to dismiss and that was standing there at the word never or argue that the reason the court should excuse the doorway was because of this new case you were fond of they didn't even argue it in their opening brief in this case that that was response in support of our cross appeal we had to put a section in there to say we're to disarmament conference wasn't argued in the trial court wasn't argued in their first brief there's no citation of authority that there's some kind of exception to the statute of limitations for some notion of a new case law they've never they've never done it yet today it's the hallmark of their argument that the courts have been very clear that they're not implying exceptions to station limitations and there's no case cited to you that there's somehow a change in wall exception to the station change this really goes back to diligence and it really goes back to how do you run a construction case involving eight million dollars and you don't take a deposition of the construction manager whether you thought they were the general contractor or just the construction you don't even take there to position five years you don't take a deposition of the developers feel personnel in five years you take the when you finally do take a deposition of the field personnel of the developer you find out if you look at the transcript he was even there when the windows and masonry were insult the general well they didn't seem to have any problem with applying the minton exception to the masonry contractor or the for that well we we say based on the bait based on the allegations of the four the minute complaint which go all the way back to some of the same allegations the first of many can point out the first original complaint the day you bought it a along but if you want to give them the benefit of doubt they came straight out and used the word insolvent in the joy i two thousand and six amended complaint so it in but anyway added a whole bunch of defendants to say well we want the money from those guys so i mean they certainly knew that the developer didn't  your honour's written in response to the presentation by they have probably one of the things that becomes very apparent when you hear the back and forth between the parties is was there diligence why couldn't something be done should it have been done it several these are frankly questions that to be determined best by the trier of fact as to whether or not as part of contends there could have been more diligence or as the situation  looked at in the context of the case itself whether or not what was thought was appropriate in fact even be a part of a just mention that these forms filed with the city back at a term were somewhat forms really don't have a quote ironclad basis of looking at two city forms and say that's true which is why the deposition of mr sent up by state with regard to concealment were not necessarily are you assuming but we are doing mistake which is another basis or relief from it otherwise harsh application of a special occasions the misstatement is the fact that the contract says construction manager not as shocking as it applies so there's a mistake not necessarily we don't have this point perhaps the basis for arguing through fraud fraudulent sumant but we certainly a developer as part of its attempt to see recovery from members of the developer l c it should be noted that in the depositions taken with regard to that the developer go after a construction manager as the structure we had to get that other piece of the puzzle which is could he be fairly characterized as a general contractor despite his own characterization as a that if you look at the principles that are play with regard to stash limitations i think you realize that if there is a reasonably diligent response and most important we are still within the ken year statute of repose which is the absolute bar that the statute has that says it's too bad if you're too late that is the absolute bar otherwise if you look at the misses case you're taking a s