me ask you this it's a little confusing to me are the plaintiffs still seeking to press or claim to enforce the who aren't you as written no not as written your honor so you're only and then what you want to do is with that warranty that's not limited by the statute or oppose you then move to reform that correct correct and i would posit your honor that that is consistent with nationally that would be a point i would just listen to honor we start with the warranty which is a ten year warranty that has duration that has limitations amongst them has a duration a limit of ten years but we're focused on is that limitation of relief which is two times the cost of repair and our theory of you have to but you have to have that expressed want to be in place to seek to reform it correct and the the obstacle we came against was the six year statute of repose in north carolina now fact there's a footnote in the walsh case that says you have to take this on a case by case basis and every case is different i don't want labor motions and i don't think you are but a but you think the question of whether or not there should be a reformation is still question it needs to be lot of case law on on that particular statute unconscionable ity it's a decision to be made by a judge based on the evidence that is presented to him and as walsh says if the you do require presentation of evidence it's rarely according to walsh and i don't know any case that's contrary to this it's rarely decided on the pleadings and i think and that was my point your honor it's not that this this court couldn't decide something as a matter of law it's that this court has already said that unconscio unconscionably and this is where the harbison court and the brown court have gone in different directions because they're in different circuits that they don't follow walls versus general motors and other circuits have found that under no circumstances can you find that the facts  prior knowledge of the fact is unconscionable in those circuits go a different way and they have said that that's not a sufficient allocation for breach of contract claim this circuit both in walsh versus g m and in the elvis case the sister case who were here on friday you know have said that when you when you plead these kinds of facts when you plead prior knowledge of a latent defect you have pled a contract claim a breach of contract cla that's what we have we've alleged facts we've had a lot of discovery and we've told the court we can prove these facts so much so that we defeated a motion for summary judgment but we have yet to i haven't and i hearing you have in front of the judge on that and that that we honor i worked i would suggest that there is nothing in christie that that that would prevent the application of north carolina statutory law the christie does not deal with unconscious and belittle so it doesn't talk about i mentioned i understand that  or unconscionable unconscionable warranty there's no distinction in that in the christie case and i would say i ask you to you to look at that the sense by judge hunter and the court of appeals which i think is what the majority opinion is saying ju there i thought was pretty straightforward saying that that all all claims when you have a ten year warranty you can bring all claims and that's what boiler originally said you can bring all claims for damages and that's what we do and this is when we're seeking a claim for something that's beyond the limits we're not seeking claim for a specific specific performance we're seeking a claim for damages and now judge boyle judge hunter and the cent and the supreme court of carolina christie have all said that that when you have of a warranty with the duration goes past the statute of repose you can bring a claim for damages and that that means that you can bring a claim for reformation under the statute that is that is a relief in this case is in the form of damages it's in the form of the money and i'm just saying you did right you did you think you had to say it then oh you didn't quite understand the theory as it unwind it through the course of a litigation i'm just asking because you ask a reformation early on in this case one would say looking at romer that you have to bring the only claims that you can go forward with ones for specific performance ok then we argue that and we and we and boyle judge boyle said no it's not linda specific performance christ now i think the better way to characterize it is damages at this point that the contract allows for damages so one could argue that specific performance but you have the damage remedy but because we're the as we said earlier your honor because it's unconscionable the claim that seeking we need to get that evidence and have a hearing in front of judge boyle so he can apply the appropriate standards and make a decision and that brings us back to two thousand and thirteen were when we started this the return to my argument your honor you know the judge boyle had two orders of course the order on summary judgment and the order that that sort of flowed from that and his in his ruling to the certification his order for summary judgment was entirely based on the now  is based on upholding the sanctity of the freedom of contract i know that but his argument is that contract as it's now been extended is the vic to all the rest of the lower north carolina including reformation for on case could not then played the statute proposed to say that there was no remedy that's all christie's stands for is that if a manufacturer chooses to grant an extended warranty that extends beyond the statute of repose in the manufacturer can be held to that warranty but but it doesn't say that that that a plaintiff whose claims are other was barred by the statute repos can then come in and rewrite the warranty that was extended by the manufacturer so let me ask you this much if it's a given if i just gave this hypothetical that everybody could agree that the warranty is unconscionable and is extended beyond the period of repose there's just no remedy and no along the remedy is the remedy that the manufacturer contracted to provide beyond the matter and i think the way to read or the way to read christy's of it all to much statement at the end of the decision in the holding paragraph that says that that the twenty year full warranty  extended by grail connected case stands in its entirety and it's our position that lps express limited warranty stands in its entirety beyond the statute of least to the supreme court of north carolina and i think in this court as well that that judge hunter observed that for warranty should be enforceable beyond the statute of repose but a positive hypothetical that was not before the court if a contract between the parties limits the remedies then claims to be on the statute of repose are limited to the specific contractual relief provided in the warranty and that's what we have here and that's what we contend the law of north carolina is otherwise the statute republish would be meaningless in the in the situation where a manufacturer had chosen to extend a warrant to be on the statute of repose if the plaintiffs could come in as they would do here and rewrite the warranty rewrite the contract and basically convert the case into a product liability damages case which is what they've been trying to do in this case in our opinion the statute repos would have no meaning whatsoever and no force it you can force a contract is provided for you yes or that's our position and that's that's consistent the other thing the other thing is but for the manufacturers decision to extend but under the warranty but then say the warranty then rewrite the warranty they just can't have it both ways the sixth circuit has agreed with that in the harbison case involving this very same warranty very same product very same plan as lawyers that case the automobile manufacturers alleged to be aware of lighting defects extended fairly short warranties that would would expire are before the defect was likely to be  big damage resulting from a light and defect within the warranty period and the remedies provided for them in the warranty are available to them to address to address those defects something to goes to the question of  discoverable their story is discovered within that contractual period it goes to show that the warranty is not substantively unconscionable because it provides a remedy for the for the wrong that they claim has been committed in this case and i think this court could very well and should we would urge if you even get to look at that the issue of whether this warranties unconscionable or not should a farm summary judgment which you can do for reasons other than those that judge boyle granted summary judgment in this case because this warranty as a matter of law is not on constable for the reasons that we've been discussing is not substantively unconscionable  were motions to dismiss and the only thing before the court were the allegations in the pleadings in this case there's a fairly well developed record as to as to how this product has performed in north carolina and there is  there is evidence affidavit evidence and expert report evidence that indicates that that by and large the product in a lot of cases the product is performing very well and there's no good there are houses with no damage whatsoever and then you've got houses with damage that might be related to installation errors in the like but there is a developed record and there's enough there's enough there we would submit that this court could find that and then they say but however the north come on a court doesn't say anywhere that normal principles of law all or that extended period no longer applicable you understand that's what they're saying yes sir and your argument to that which is i think that's true is not right those who think that then completely undercuts the actual ruling and what the court did and in the supreme court is there and the rationale for the ruling you have a contract the parties are entitled to the benefit of the contract be on the statute of opposed to the extent that nine expressly contemplates and permits manufacturers issue limited warranties and with with limitations and disqualifiers and that's exactly what we have here is a it's a typical use of the city limited warranty and benefit of the extension of the contract beyond the statute of repose and then turn around and say well we'll take that benefit but we want the contract to say what we wanted to i understand that's what i thought you were  folks that of bringing claims before six years and those that are bringing after six years and whether or not these remedies that are otherwise available in north carolina law under the u c c are available after six years and i do think christie has something to say about that pose period runs there is some sort of paradigm shift in the law where plaintiffs can bring a claim for breach of the written terms of the contract but can no longer do what i've always been and it has always been allowed in california which is it makes the fact of the existence of a stash of repose in a warranty case that extends beyond the right if you didn't make any difference at all that that is our argument that is our contention of how the or oppose is meaningless part of showing that the limitations of warranty fails of its essential purpose and that's the failure essential purpose is a statutory remedy under the u c c it's twenty five dash two seven one nine that paragraph doesn't refer to unconscionable ity but there's no reason that it should be limited to a limitation believe essential purpose twenty five there are two three zero two is just another statute in the u c c north carolina u c c regime that supports our claim for unconscionable ity we're not reaching into equity or tor anything like that we're still solidly in the the u c c statutory regime and my point is when you look at that that the textbook law if you look at judge boyle look at church hunters the cent and you look at the language i just quoted from period or outside the six year period and then there's in the end as it turns out the contract is a full warranty so it doesn't make an alice easier because when when the door opened and we got we got into that room everything was available because that was the nature of the contract