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Click here for the full text of this decision FACTS:William and Madelyn Dean contracted with Nader Design Group (NDG) and David Lewis Builders Inc. (DLB) in November 1995 to build the couple’s home. James Nader of NDG was the architect, and he hired Frank W. Neal & Associates Inc. to serve as the structural engineer, which would include designing the home’s foundation. Based on soil samples he got from HBC Engineering Inc. (HBC), Neal recommended building the house on a suspended slab. The Deans rejected the idea as too expensive, so Neal designed a slab-on-grade foundation. Construction began in 1996. Soon Neal and the Deans noticed cracks in the foundation. Neal did not believe the cracks threatened the integrity of the slab, and so recommended a fix to protect the slab from cracking further. There was no evidence that the fixes were made, but the Deans closed on the house in December 1996. The Deans noticed more cracks in the foundation as soon as they moved in. When more cracks appeared in October 1997, Neal met with David Lewis of DLB and Ralph Barnes of HBC and it was suggested that chemicals be injected into the soil underneath the house to stop any moisture-related movement under the slab. Madelyn Dean knew about this meeting and its purpose. An experimental probe of the soil was conducted in December 1997. From 1998 to 2002, Nader met with various parties, including Neal and Barnes, to further discuss the foundation. The Deans received an engineer’s report in August 1998, which concluded the soil under the house had expanded more than HBC originally predicted. Though the Deans believed that some or all of these parties would pay for any repairs, they were informed otherwise at a meeting on Jan. 23, 2002. The Deans sued all of the companies and individuals connected to the project on Jan. 28, 2002, though they later nonsuited NDG. The remaining defendants filed summary judgment motions based on limitations. The Deans responded by amending their pleadings to aver that the discovery rule applied, and that the defendants were equitably estopped from asserting limitations because their conduct induced the Deans not to file suit. The trial court granted the separate summary judgment motions of each defendant, and the Deans appeal. HOLDING:Affirmed. The court first addresses whether the discovery rule applies. According to Madelyn Dean’s deposition, the Deans first noticed cracks in the foundation in July 1996. She was aware of the October 1997 meeting and its purpose to discuss injecting the soil to prevent further cracking problem. She also stated that she new of repairs in 1997 and 1998, some of which were based on the December 1997 experimental probe. The court concludes that the Deans actually knew of the problem no later than December 1997 that soil movement was causing cracking in their home that required further testing and monitoring, though they might not have known the extent of the problem until August 1998. Further evidence indicates that the Deans should have known by October 1997, since that is when they noticed enough of a problem to call Nader in again. The Deans should have filed their suit within four years of October 1997. As they did not file suit until January 2002, limitations bars the suit and the discovery rule does not apply. The court next addresses the equitable estoppel issue. The Deans argue that the defendants’ conduct induced them to believe that they (the defendants) would pay for any necessary repairs to the home’s foundation. The court notes that to prevail on this issue, the Deans must have presented some evidence that the defendants affirmatively induced them into delaying suit, without any lack of diligence on their part. The court finds the thrust of the Deans’ assertions to be that none of the defendants ever told them that they would not pay for any and all necessary foundation repairs, not that any of the defendants affirmatively told them they would pay for such repairs. They also assert that the defendants’ silence, along with the summary judgment evidence showing that the defendants had met about the foundation problem, hired professionals to investigate the source of the problem and provide price estimates for necessary repairs, and made at least some attempts to repair damage at no cost to the Deans, induced the Deans to forego filing suit until after the applicable limitations periods had expired. The court agrees that the summary judgment evidence may have shown that the defendants had an agreement among themselves to undertake or to pay for some of the repairs, but there is no evidence that the Deans were personally aware of any specific payments any of the defendants made. Nor were they aware of an agreement, if there even was one. There is no fact issue as to whether the defendants were estopped from asserting limitations. “We do not wish to appear unsympathetic to the Deans. Their willingness to give [the defendants] the opportunity to attempt a resolution of this matter without hastily resorting to litigation is admirable. But however admirable, the Deans’ reliance on the [defendants'] conduct presented as summary judgment evidence does not support their equitable estoppel argument.” OPINION:Terrie Livingston, J.; Livingston, Gardner and McCoy, JJ.

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