sweeney started to have problems with their residence for example small cracks doors when you know of and they didn't know what was causing these problems so they contacted their contractor norman and sons repeatedly said that these were normal settlement like most homeowners if you ask a contractor they'll always say little cracks in your foundation here in there that's attributable settlement problems no armaments arms completely repeatedly told them this was normal cement  they could fix these problems caused by caulking the cracks reposition the plates on the doors and so on this continued on for several years each time no harm and some people saying it's normal in two thousand and three these problems started to get worse by mid two thousand and three with norman sums continuing to say it's an enormous of the problems this when he saw that it might be more than just a normal settlement but didn't know what was causing this problem in the determine what these problems were wasn't soil wasn't minds of science was an issue with construction just didn't know all along the way we do know however as it's undisputed that norman sun's continued to say that this was normal  in november of two thousand and three still not knowing what the issues were the sweeney's contacted woods basement systems the other defendant in this manner to install anger is to secure the structure you keep it from for other people from having further problems as will later find out which was unsuccessful and allegedly made the problems worse these are actors in the foundation enters into the ground and ultimately  what we believe to solve the problem was that we had to go so far down in the bedrock to install a different type of anchor by a different director in september two thousand and four which we believe is the earliest that the and saw there was supposed to be rebar in the foundation according to the architectural drawings however when he first repaired those drawings there at that time to get construction contractors drawings he noticed that there may not be a continuous rebar in the foundation which is exactly why at that time the contractor said we don't put rebar in the foundation you're talking footings your wall in the fourteen's of the foundation of the house the investigation thereafter continues now that we have an idea of what's going on prior to this home this issue apparently was buried in concrete in the foundation of the house so no no homeowner know what the problems actually was a matter of fact is the record shows we are still trying to figure out as far as two thousand and eight to make sure where exactly the contractor didn't put rebar in the foundation and that's and the second defendant against wood's basement systems for breach of their guarantee in their contract that they would fix the problem that now this case the two defendants two different paths in this case for no herman and sons they first moved to dismiss the complaint based upon two six fifteen on the pleadings and that's important to be important later on this appeal when i get to the issues of how the tryout works order we believe was incorrect that motion on the pleadings is granted with leave to refile asking for more faxes to discovery or the discovery rules that you that's vitally important next was a two six nineteen motion and therefore are there after a summary judgment motion is filed and granted we did go through a couple of judge changes in this process and this was the new judge that we just again who granted the summary judgment woods would have a windfall of fees if this fees award was granted that motion was tonight this appeal falls out the reason which motion was tonight was because the judge didn't think that  any of the reasons that we cited and i'll get to this in a little bit well within that statute so we have an appeal here today against no herman songs the issue is whether the trial court erred in granting summary judgment  terminating when the statute of limitations began to run as a matter of law we all know the summary judgment is granted when there's no genuine issue of material fact and all the difference is must be drawn in favor of the nom party coursed novo review in this court runs in construction cases such as this when a person knows or reasonably should have known of an injury i don't think there's any dispute that we actually knew an injury get hurt and that it was wrongfully caused as well sell courts as the south court says it's not when it might be wrongfully cause is when it we know it is wrong because we're in a reasonable person should know what's wrong because that's the issue the issue of whether that can be determined as a be a matter of law when two things are present which neither of them are present here there is no one disputed facts and only one conclusion can be drawn from those on the state of facts that's the situation they've cite much like the suggestions of the contractor here were adequate to keep them person from investigating further therefore it's a question of fact birger it is almost the same situation knox college almost the same plaintiff inspected the home no he didn't the record shows that he only visited the home briefly an occasion to some pictures to him or a scrapbook visit the home and knew of drawings show it so then he looks at the contractors drawings and sees for the first time in america that we were still trying to determine his latest two thousand metre two thousand nine where exactly they didn't put rebar in the foundation during the course of this was drawn item six and this was the determining factor of the trial court by two thousand and three the plaintiff affirmatively did not believe defendant's explanation this comes out of a deposition where the mr home or mr sweeney says in a deposition that i no longer believe you that was in two thousand and three and that's what the trial or on what he said was i no longer believe you that these are foundation just saying i don't believe you anymore it's almost like the same point if a new page county who knew of issues as soon as construction was finished saying i don't believe you that these problems that we're having with the moisture  are not i don't believe your explanation still you of a party has to know recently should've known that they actually have a cause of action which is the whole point behind the two part test if you take the defendant's position in this you don't they cited saying this isn't the analogous case totally different facts an area here you have a contractor suing a some kind of what they don't go into was the priorities for the owner sued that same contractor years before in a contractor knew what the problem was then they were just waiting to see if they could win that before that first case which is playschool vs benson playschool the toy company won forty seven eleven there were ninety two in that also benson case basically they had the plaintiff is basically had on clean hands they just sat on the issue here and then suit years later so as a matter of law based on the undisputed facts only one conclusion could have been wrong he knew of the problem  conclusion here now as to what's was the easier to do so i'll just condensed as the issue there is whether the trial court could have review should have reviewed the merits of our motion under seven  i'll see s five slash twelve or five slash thirteen in those statutes themselves they say they give reasons why a trial court can review an arbitration board for example the arbitrator of seated his powers made an evident evident mistake or miscalculation or decided issues not before the arbitrator those were the issues that we raised in our motion and what the trial judge said there was the motion our motion to strike or modify the arbitration were denied as none of the reasons set forth in our motion fall within those actions well that's exactly what we were raising but the trial judge never addressed it as to woods we're not saying we should win that here we're is pretty difficult problem of we're asking for a shot at the same exact thing we're asking for in norman and sometimes there is a question of fact here numerous questions effect which we detail in our briefs thrown out because of a problem with attorneys fees with the exception of hall and with the exception was on was because it was basically some presidential column conduct that took place outside the  attack a war there is a section twelve and a new form arbitration have to deal with a recession thirteen under the uniform arbitration act of deals with modified and then there's a public policy argument that's been developed with regard to arbitration the plaintiffs claim that the arbitrator exceeded his powers under twelve a three there is a presumption that an arbitrator does not see this and the arbitrator's decision can be illogical inconsistent and that is not enough to reverse the arbitration there can be gross errors of judgment of law in fact that would not be enough to reverse an arbitrator's award less that appeared on the face of the award arbitration is a and i guess this comes down to some feeling that how my client paid for their legal services or their expenses is some i recall rove is somehow relevant to the arbitration of the parties don't actually i get in part brief but actually not probably about sixty percent because this thing when a long time before we ever went to court on it i handled do it over i mean there's a lot of history behind this before arbitration but my quick overview my argument is that it's extremely important which was not addressed and mr johnson's argument is the statue imitation is that holds its case and how it affects this case secondly what analysis of the knox knowledge that there was something wrong causing these damages in the spring of two thousand and three and their admissions that they no longer believed any assurance by my client if there were any made as of spring of two thousand and three as well  and finally that even if there weren't any of these admissions that we even if there wasn't actual knowledge of the wrongfully cause there's a reason they're subjective knowledge or constructive knowledge and that's and so in that they replay and they said september two thousand and four just like mr johnson says today that they saw a tiny crack in a frost wall that even there even mr sweeney and their expert both discovered now what's important though is that there's also the for your staff imitation and they filed suit october fifth two thousand and seven so they actually discovered it prior to october by two thousand and three their time on that issue was not before the court with a two six one thousand motion and this is a perfect example of why this is a different case than the cases that that mr johnson  conclusion is that the discovery actually occurred before october two thousand and three and that was spring two thousand and three and i'll get to those admissions quickly but the knox college deposition testimony and mr sweeney himself in spring two thousand and three there is this large gap southwest basement corner and what he described as major cracking on the outside bricks of the home and he said it was so it was  to the next that's a different question he stated that he knew something was wrong that was causing the damage to the house that's why he was contacting my client because there's damage to the house you want to know why it's being ca is does it start when they see the damage you know does it start when the plaintiffs know of these specific long haul conduct that they believe that the defendant did or that they have a cause of action against the defendant and they said no it doesn't occur at that point either and it's expressly states express these things from courses that it does the it does not require the plaintiff to have knowledge of these specific bronco conduct by the defendant or the actual cause of action and that is what mr johnson's argument in this case there same one think and all the damages and such they're saying the small particular crack is the only thing is the only thing that could be the discovery and the only thing that it actually is it is evidence of when they got knowledge of the specific alleged wrongful know that it's wrong because and what is wrong please because they have a duty of inquiry to determine to determine what the cause is and to determine if there's a cause of action because of that and the  was clearly correct in this case and there's only one conclusion that can be drawn from the evidence and that is this spring of two thousand and three with all the damages that occurred all the missions that the point is made in this case that the defendants explanation that's admitted soon by the plaintiffs in their brief and also in their motion for reconsideration truck or they're not disputing that they no longer shirred they no longer believe or relied upon those  over before october that the window restarted they contacted three contractors to determine exactly what the cause was and they actually contract it with the contractor did the work in november a year before they claim that they even i i know in the minds of satan's that was started that was brought up as the record shows after two thousand or when you issues as we we want to know if this was just the rebar or if there were other you know other issues going on as the record i believe shows we were working with the minds of some agents i forget the name of the group there was state entity when we because when we come out with an engineer to our expert who first came out after we discovered that there was no he and there were a lot of issues there and i don't believe this is in the record so i don't want to go into it but there was a lot going on as t were saying we need we need to look at the statutes but specifically say a five dash slash twelve when an arbitrator exceeds their powers that going can be or the work can be reviewed by slash thirteen same with a miscalculation mistake or on issues not submitted to them the hard case is a good example of where the trial court did review it and found that there was enough there to overturn the arbitration so it can happen the arbitration words whether it's all that or someone who knows what's got some sort of windfall here the arbitrator serves based on expectation of repayment but nothing was in evidence including the insurance contract to show they have no obligation to repay or the reason su so there's a lot wrong here the issue is women it is not determining the statute of limitations the issue is whether the station limitations can be determined in this case is a matter of law and the answer to that   no this is a factual question here with all of everything going on this is a question of fact it has been there's so much in the in the in the record which we've brief which shows if you take it in first the proper way we are you could have a homeowner who doesn't want to dig up their foundation because they might not know there's an issue there when you say there's this tiny crack actually it was an inch and a half wide you can stick your fingers in there and you don't see any  same standard they're good cases they're almost on point if not directly on point where this exact same scenario is going on here is no way this is a question of law same that you no longer believe the