Civil Procedure Final Essay

1938 words - 8 pages

Question I.
Usually, when the statute of limitations (SOL) has run on a claim the defendant can raise the defense of a 12(b)(6) motion to dismiss the claim because the claim has fallen outside of the SOL period; however, in certain cases it is not reasonably possible for a person to know that an action in law has occurred. In this instance, it would not be fair to make a person responsible to bring a case in a timely fashion, if he or she did not know that a case should be brought. In a case where it is not immediately apparent that an error has occurred and a case could be brought, the SOL begins to run when a person has discovered, or in the exercise of reasonable care should have discovered the error due to another’s negligence. Jon and Martha Peterson’s case is one of those cases.
When Jon and Martha Peterson’s (Petersons) home was finished in August of 2006, Delvin Duck (Duck) stated to the Petersons “Oh, don’t worry if… you see some slight bulging in the basement walls—it’s a normal give and take with the kind of soil under your house. If you ever worry… I’ll come take a look.” Throughout 2006-2007 the Petersons noticed bulging in the basement walls; however, because of the assurances of Duck and his predictions that this would happen, they thought nothing of it. While it can be said that the Petersons should have known something was wrong when the bulging began, and therefore, this is when the SOL should have started running, it can be assumed that the Petersons were not experts in soil investigation and analysis, hence the reason they hired a professional soil engineering firm.
Because they got these assurances from Duck, who was a part of the professional firm they hired (especially because it was before any damage had happened), it was not unreasonable for the Petersons to believe that nothing was wrong when they saw the bulging. However, in 2008 when Martha Peterson learned of the horizontal and vertical cracks in the basement and saw the paint peeling from the walls, she should have been aware something was wrong, even though Duck again assured her not to worry because “…every house has those.”
Also, when looking to the common law there are many elements which must be present to plead fraud. Some of these are “that there must be a representation of an existing fact; It must be false; the speaker had to know it was false; the plaintiff must be ignorant of the falsity; the plaintiff must have a right to rely on its falsity; and, the plaintiff must rely on the truth of the representation.” Because the Petersons relied upon Duck’s representation that bulging in the walls was normal (and presumably because they had no knowledge of the soil business), they were ignorant to the alleged falsity of his claims. When they noticed the bulging, they again had no reason to believe that anything was wrong because they had been informed this was normal. Even though they believed Duck about the bulging, nothing had ever been...

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