Q: home builder refuses to fix foundation, lawyer said I’m outside of statute of limitations to sue (4 years), what do i do

A: It depends upon the terms of your contract, when your claim accrued, and when you discovered--or by exercising reasonable diligence should have discovered--the material facts giving rise to your claim. The date of substantial completion of your home may trigger what is called the "statute of repose", which is a different thing than a statute of limitations. In 2019, the statute of repose was ten years, but as a condition precedent to its availability, the builder was required to give a ten year warranty on structural components including the foundation.

Some builders forego the protection afforded by the statute of repose and give a much shorter warranty on structural components. Some shorter warranties may rule out certain types of lenders from offering mortgage or construction loans on them.

Your builder is absolutely correct that some settling and foundation movement is normal and expected. But that cuts two ways. "Normal" foundation settling means your cause of action had not accrued (yet). Your cause of action accrued when your foundation movement passed "normal" and entered into the zone of "abnormal." As foundation slabs move, the structures that they support also move. The more rigid and brittle the materials used to build a house are, the more rapidly visible damage will appear. For example, brick veneer is more brittle than wood siding, and ceramic floor tiles are more rigid than vinyl tiles. Therefore, even normal and expected foundation movement can cause cosmetic damage such as cracking in the brick veneer or drywall or in ceramic floor tiles.

Your foundation most likely is a slab on grade foundation. Your structural engineer should be able to tell you whether your foundation meets the performance standards for the maximum allowable deflection and maximum allowable tilt based on the measurements he took and the calculations he made. I would argue that, when the builder came out originally, it confirmed that any foundation movement at that time was "normal" (or is estopped to deny otherwise). When your engineer came out, his calculations for the first time showed that the foundation movement was then "not normal."

Accordingly, your cause of action accrued for purposes of the statute of limitations some time between those two dates, and the date you discovered--and should have discovered--the "not normal" movement was the date when the engineer performed his work. It sounds from your question like that is within the four-year statute of limitations for a breach of warranty claim and may be within a two-year statute of limitations for negligence or deceptive trade practices.

I note that it is well-documented that the root systems of large trees and shrubbery in close proximity to foundations or footings tend to dry the soils around a perimeter of their root system for a distance approximating one and one-half the tree height if planted in a line. Below average rainfall tends to exacerbate this effect. This is why you have to plant trees and shrubbery a good distance away from the perimeter of a home and why you have to properly water around the foundation in times of low rainfall. Unless you unwisely made a decision to keep certain mature trees near your home, an argument can be made that the builder should have removed existing mature trees and planted new trees a distance from the home of not less than one and one-half of the tree's expected height when it fully matured.