SUPREME COURT OF NORTH DAKOTA
SUPREME COURT NO.: 20120279
DISTRICT COURT NO.: 09-2010-CV-02587
|Terence Barrett and Rachel Barrett||Plaintiffs/Appellants|
|Harry Gilbertson, d.b.a. Harry Gilbertson Construction||Defendant/Appellee|
ON APPEAL FROM THE DISTRICT COURT
BRIEF OF APPELLEE
|Timothy P. Hill (04503)||David Garaas (03219)|
HILL LAW OFFICE, PLLC
|GARAAS LAW FIRM|
1351 Page Drive, Suite 202DeMores
|Attorney for Appellee||Attorney for Appellants|
|Table of Contents|
|1. Table of Authorities--------iii|
|2. Jurisdictional Statement---¶1|
|3. Statement of the Issues: ---¶2|
|The issues as presented by Appellee are as follows:|
|A.||Whether the District Court erred in finding that there was no showing of a breach of contract in connection with the basement headroom issue.|
|B.||Whether the District Court erred in finding that the Final Settlement Offer extinguished any claim for basement headroom discrepancies.|
|C.||Whether the District Court erred in finding that Barretts didn't establish a claim for breach of contract.|
|D.||Whether the Barretts were relieved of their obligation to mitigate their damages by allowing Gilbertson onto the subject property.|
|E.||Whether the Barretts supplied credible evidence of damages.|
|F.||Whether the District Court did erred in refusing to award attorney fees.|
|4.||Statement of the Case--¶3|
|5.||Statement of the Facts--¶4|
|6.||Statement of Standard of Review--------¶15|
|A. The District Court did not err in finding that there was no showing of a|
|breach of contract in connection with the basement headroom issue.--- ¶23|
|B. The District Court did not err in finding that the Final Settlement Offer|
|extinguished any claim for basement headroom discrepancies ----------¶34|
|C. The District Court did not err in finding that Barretts didn't establish|
|a claim for breach of contract ---------¶41|
|D. The Barretts were not relieved of their obligation to mitigate their|
|damages by allowing Gilbertson onto the subject property -¶44|
|E. The Barretts supplied no credible evidence of damages --¶55|
|F. The District Court did not err in refusing to award attorney fees. ---¶71|
|8. Conclusion -¶78|
Table of Authorities
|Bumann v. Maurer, 203 N.W.2d 434 (N.D. 1972)-- ¶56|
|Cavendish Farms v. Mathiason Farms, 2010 ND 236, 792 N.W.2d 500---¶16, ¶21|
|Circle B Enterprises, Inc. v. Steinke, 1998 ND 164, 584 N.W.2d 97 -----------¶18|
|City of Fargo v. Malme, 2008 ND 172, 756 N.W.2d 197--------¶77|
|Coughlin Construction v. Nu-Tec Industries, 2008 ND 163, 755 N.W.2d 867--¶19|
|Dittmer v. Nokleberg, 219 N.W.2d 201 (N.D. 1974)------------ ¶18|
|Hanson v. Boeder, 2007 ND 20, 727 N.W.2d 280----¶19, ¶20, ¶44, ¶55|
|Hoge v. Burleigh County Water Management District, 311 N.W.2d 23 (N.D. 1981) -----¶15, ¶23|
|Keller v. Bolding, 2004 ND 80, 678 N.W.2d 578--¶21|
|Keller v. Hummel, 334 N.W. 2d 200 (N.D. 1983)- ¶40|
|Leininger v. Sola, 314 N.W.2d 39 (N.D. 1981) ----¶22|
|Mattco, Inc. v. Mandan Radio Ass'n Inc., 246 N.W.2d 222 (N.D. 1976) -------¶39|
|Peoples State Bk. Of Truman v. Molstad Excavating, 2006 ND 183, 721 N.W.2d 43 ----------¶39|
|Robertson Companies, Inc. vs. Kenner, 311 N.W.2d 194 (N.D. 1981)--------- ¶18|
|Sanders v. Gravel Products, Inc, 2008 ND 161, 755 N.W.2d 826---¶17|
|Schneidt v. Absey Motors, Inc, 248 N.W.2d 792 (N.D. 1976)-- ¶47|
|Schwarting v. Schwarting, 310 N.W.2d 738 (N.D. 1981) -------¶39|
|Stanspec Corp. v. Jelco, 464 F.2d 1184 (10th Cir. 1972) --------¶53|
|N.D.C.C. §43-07-26------------¶5 2|
|N.D.C.C. §32-03-09----------¶55, ¶56|
|N.D.C.C. §28-26-01(2) ------¶71, ¶76|
1. JURISDICTIONAL STATEMENT
 This is an appeal by Appellants from the Judgment of the District Court entered on April 30, 2012 and the denial of attorney fees entered on May 16, 2012.
2. STATEMENT OF THE ISSUES
[2} The issues as determined by Appellee are as follows:
A. Whether the District Court erred in finding that there was no showing of a breach of contract in connection with the basement headroom issue.
B. Whether the District Court erred in finding that the Final Settlement Offer extinguished any claim for basement headroom discrepancies.
C. Whether the District Court erred in finding that Barretts didn't establish a claim for breach of contract.
D. Whether the Barretts were relieved of their obligation to mitigate their damages by allowing Gilbertson onto the subject property.
E. Whether the Barretts supplied credible evidence of damages.
F. Whether the District Court did erred in refusing to award attorney fees.
3. STATEMENT OF THE CASE
 Appellee is satisfied with the timelines presented by Appellants in their Statement of the Case.
4. STATEMENT OF THE FACTS
 Harry Gilbertson (hereinafter "Gilbertson") has been in the residential construction industry for 15 years. Tr. p. 336, l. 1. He had never been sued prior to his involvement with Terrance and Rachel Barrett. Tr. p. 335, 1. 23.
 On or about May 4, 2007 Gilbertson entered into a Construction/Purchase Agreement with the Terence and Rachel Barrett (hereinafter "Barretts" collectively or "Mr." and "Ms.") for the erection of a residential home located just west of Kindred, North Dakota. Appellant's App. 16. Gilbertson's selection was after an interview process conducted by the Barretts. Tr. p. 300; Tr. p. 338, ll. 21-25; Tr. p. 379, ll. 16-21.
 Mr. Barrett was not involved directly with Gilbertson in the project. Tr. 339, ll. 14-17. Ms. Barrett, on the other hand, was a self-proclaimed project manager. Tr. p. 340, ll. 1-2.
 The first drawings for the project did not provide for a below grade area. Tr. p. 346, ll. 22-24; Tr. p. 371, ll. 3-10; Appellee's App. 2 (Exhibit 204). At the beginning Ms. Barrett didn't even want to have a basement at all. Tr. p. 303, ll. 3-8. The blueprint clearly shows an unexcavated property.
Q. Is that why in your original plans for this house you didn't want a below grade property?
A. In our original plan when we didn't even have a basement we didn't want to have a basement.
Q. You didn't want to have anything below grade?
Tr. p. 303, ll. 3-8.
 The first time Gilbertson saw construction plans there was no below grade space. Tr. p. 346, ll. 22-24.
 A below grade storage area was recommended by Gilbertson to house the mechanical for the house. Tr. p. 340, ll. 21-23. Ms. Barrett concurred that Gilbertson encouraged the Barretts to have a below grade space.
Q. Okay. Now, Mr. Gilbertson encouraged you to have a below grade space?
Q. And one of the reasons was that we have some severe elements in this part of the country, tornados and storms, it would give you a place to go?
A. This is what he said.
Q. Okay. And he also said it would provide a place to put your mechanical?
Q. So you wouldn't have to have it on your first floor like you had drawn?
Q. Did that make sense to you?
Tr. p. 304, ll. 2-16.
 Mr. Barrett agreed that the mechanical should go below grade and did not regret the recommendation by Gilbertson. Tr. p. 198, ll. 6-11.
 Ms. Barrett directed the change in the blueprint to provide for storage. Tr. p. 346, ll. 22-25; Tr. p. 347, ll. 1-4. Gilbertson had nothing to do with Mrs. Barrett's communications with the blueprint draftsman. Tr. p. 373, ll. 4-5.
 Ms. Barrett did not specify to the draftsman the height of the storage area.
Q. Okay, Did you discuss with Mr. Jorgenson when we finally got the final plan, before that was actually drawn, that shows the storage area, that you wanted to have a space below grade for storage?
A. I said I would like an unfinished basement that I was going to use for storage.
Q. Okay. Did you give him any other explanation of what you wanted?
A. I said an unfinished basement that I would use for storage.
Q. Okay. Did you give him any height requirements?
A. I said an unfinished basement that I would use
Q. Ma'am, the question I asked you is did you give him any height instructions, yes or no?
Tr. p. 310, ll. 24-25; p. 311, ll. 1-13.
 It was never intended that the space below grade be habitable. Tr. p. 389, ll. 15-21.
 Construction was substantially completed by December 2007. Tr. p. 175, ll. 15-12. After substantial completions of the project Gilbertson received multiple bullet items of deficiencies. Tr. 384, ll. 6-20. Gilbertson was prepared to go into the house to address the perceived discrepancies. Tr. p. 385, ll. 17-18; Tr. p. 182, ll. 14-18. Barretts never let Gilbertson back on the property to fix any claimed discrepancies. Tr. 185, ll. 9-11.
Q. And you knew that as a warranty issue you got to let the contractor in there to try to remedy them?
A. To do it adequately, yes.
Q. And you didn't' do that?
A. We did not.
Tr. p. 191, ll. 21-25.
5. STATEMENT OF THE STANDARD OF REVIEW
 On review, this Court's review is not a redetermination of the evidence. Hoge v. Burleigh County Water Management District, 311 N.W.2d 23 (N.D. 1981). "The trial court's findings are to be given the same weight as a jury verdict and, in reviewing those findings, the evidence must be viewed in a light most favorable to the findings." Hoge, 311 N.W.2d at 28. "On appeal it is not the function of this court to substitute its judgment for that of the trial court . . . Questions of fact decided by the trial court upon conflicting evidence are not subject to reexamination by this court." Id.
 "A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made." Cavendish Farms v. Mathiason Farms, 2010 ND 236, ¶17, 792 N.W.2d 500, 508 (Citations Omitted).
 A determination of whether a breach of contract occurred is a question of fact subject to the clearly erroneous standard. As stated by this Court:
A breach of contract occurs " 'when there is nonperformance of a contractual duty when it is due.'" Van Sickle v. Hallmark & Associ., Inc., 2008 ND 12, ¶11, 744 N.W.2d 532 (quoting Good Bird v. Twin Buttes Sch. Dist., 2007 ND 103, ¶9, 733 N.W.2d 601. Whether a party has breached a contract is a finding of fact that will not be reversed on appeal unless it is clearly erroneous. Silbernagel v. Silbernagel, 2007 ND 124, ¶19, 736 N.W.2d 441. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made.
Sanders v. Gravel Products, Inc., 2008 ND 161, ¶7, 755 N.W.2d 826, 830 (Citation Omitted).
 Whether a contract has been substantially performed is a question of fact. Robertson Companies, Inc. vs. Kenner, 311 N.W.2d 194, 198 (N.D. 1981). Whether a contractor has substantially performed is a question of fact. Circle B Enterprises, Inc. v. Steinke, 1998 ND 164, ¶6, 584 N.W.2d 97, 100. A question of fact on substantial performance is interpreted in accordance with the clearly erroneous standard. Dittmer v. Nokleberg, 219 N.W.2d 201, 209 (N.D. 1974).
 A determination of damages is a question of fact subject to clearly erroneous standard. "A [district] court's determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review." Hanson v. Boeder, 2007 ND 20,¶7, 727 N.W.2d 280, 283 (Citation Omitted). "Whether a party has made a good-faith effort to mitigate damages is a finding of fact that will be set aside on appeal only if it is clearly erroneous." Coughlin Construction v. Nu-Tec Industries, 2008 ND 163, ¶12, 755 N.W.2d 867, 892 (Citation Omitted).
 "A finding is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, on the entire record, we are left with a definite and firm conviction a mistake has been made." Hanson, 2007 ND at ¶7.
 An appeal is not an opportunity to retry facts.
A trial court's determination of the amount of damages caused by a breach of contract is a finding of fact subject to the clearly erroneous standard of review. Wachter v. Gratech Co., Ltd., 2000 ND 62, ¶17, 608 N.W.2d 279. "We do not reverse the trial court's factual findings merely because we may view the evidence differently, and a choice between two permissible views of the weight of the evidence is not clearly erroneous." Krank v. Krank, 2003 ND 146, ¶6, 669 N.W.2d 105. "In reviewing findings of fact, we give due regard to the trial court's opportunity to assess the credibility and observe the demeanor of the witnesses." Wagner v. Wagner, 2000 ND 132, ¶12, 612 N.W.2d 555. We view the evidence in the light most favorable to the findings, and we do not reweigh evidence or reassess credibility if there is evidence to support the trial court's findings.
Cavendish Farms v. Mathiason Farms, 2010 ND 236, ¶20, 792 N.W.2d 500, 509; Keller v Bolding, 2004 ND 80,¶22, 678 N.W.2d 578, 585.
 A determination whether mitigation of damages was reasonably possible is a question of fact. Leininger v. Sola, 314 N.W.2d 39, 48 (N.D. 1981).
A. The District Court did not err in finding that there was no showing of a breach of contract in connection with the basement headroom issue.
 "In determining whether or not the trial court erred as a matter of law in its construction of the contract we must be guided first by the language of the contract itself, and where the contract is clear and unambiguous there is no reason to go further." Hoge v. Burleigh County Water Management District, 311 N.W.2d 23, 27 (N.D. 1981) (Citations Omitted).
 The district court determined the following on Barretts' claim that they were entitled to a full basement: "There is nothing in writing that specifies minimum headroom.
However, the testimony establishes that the design and dimensions of the below grade space were discussed on numerous occasions by Rachel and Gilbertson." Appellants' App. 150.
 Simply stated, the Barretts supplied no persuasive evidence as to their claim that the headroom in the basement did not comply with the parties' understanding. Ms. Barrett as the project manager supplied the draftsman with no specifications for the height of the below grade storage area. Tr. p. 310, ll. 24-25; p. 311, ll. 1-13. The word "basement" is only referenced one time in the Construction/Purchase Agreement. The word is referenced in the context of allowances for excavation. Appellants' App. 16. Nowhere else is "basement" referred to in any documentation of the parties.
 In fact, the original plans for Barretts' property provided for a slab on grade foundation with no below grade space. Appellee's App. 2. Gilbertson convinced the Barretts to provide for a below grade space to accommodate the mechanical for the property and for weather related shelter.
 None of the various blueprints for the subject property describe the below grade space as a basement. The blueprint signed and approved by the Barretts described the below grade space as "storage". Appellants' App. 148.
 The Barretts' expert, Ronald Dick, agreed that under applicable building code regulations in effect at the time of the construction of the property in question a "basement" was that portion of a building that is partially or completely below grade. Tr. p. 78, ll. 13-21. A below grade space can either be habitable or uninhabitable. Tr. p. 79, ll. 18-25; p. 80, ll. 1-8. Typically, a storage or crawl space is not habitable. Tr. p. 80, ll. 13-20. In his report Mr. Dick suggested that no reference was made on the plan specifications as to what was to be the intended purpose of the below grade space. Appellant's App. P. 35. At trial, Mr. Dick had to
acknowledge that the approved blueprints specifically called for storage below grade. Tr. p. 83, ll. 22-25, p. 84, ll. 1-4. Mr. Dick also agreed that as a storage space it could not be occupied as a sleeping space. Tr. p. 100, ll. 14-20.
 Barretts' expert further based his opinion on erroneous government rules and regulations. Mr. Dick applies the 2006 International Residential Code rather than the 2003 International Residential Code in effect during construction of Barretts' residence. Mr. Dick acknowledged that the 2003 Code defined basement as "that portion of a building that is partially or completely below grade." Tr. p. 78, ll. 13-21.
 The only premise relied upon by Mr. Dick to conclude that the basement would have 7 foot clearance was an erroneous conclusion that stair riser height had to vary between 7" to 7"3/4 inches. However, Mr. Dick acknowledged that 7" to 7 ¾" is a maximum height for risers and there is no minimum height requirement. Tr. p. 88, ll. 1-25. In other words, just because there are 13 risers shown on the blueprints it doesn't mean each riser has a 7" variance.
 Moreover, Mr. Barrett acknowledged to Gilbertson's construction lender, Bill Kuzas, that the basement situation was Barretts' misunderstanding. Tr. p. 241 11. 21-25. According to Mr. Kuzas, Mr. Barrett admitted it "was his misunderstanding regarding how high the basement would be as the dig elevation got changed as the project proceeded." Appellee App. 5.
 Finally, it was obvious from a visual inspection that the below grade space at the Barretts' residence was not a full basement. Tr. p. 36. The stairs to the below grade storage space had been installed early on and Ms. Barrett had multiple opportunities to inspect the below grade storage space before the house was built around it.
Q. (By Mr. Hill) I mean, isn't it obvious what was goin' on in this basement?
A. (By Mr. Gilbertson) To me it was. It was never brought up. Terry never of course I didn't have conversations with Terry. But Rachel didn't even bring it up as an issue.
Q. At some point, Harry, there's stairs going downstairs?
A. There were done very early on. That's the first part of the project.
Q. She could have walked downstairs many times?
A. That was the first part of the project we had to do was this floor system. After all the concrete work was done, before any of the exterior walls on the house were done we needed to do this. This is the very first thing that was done.
Q. Okay. Harry, all I'm trying to get at is she would have had thousands of occasions to walk down those stairs?
Tr. p. 407, ll. 2-19.
 The storage space was an add on to the construction agreement and the Barretts got what they bargained for.
B. The District Court did not err in finding that the Final Settlement Offer extinguished any claim for basement headroom discrepancies.
 Even if a plausible argument could be had for a full basement, the execution of the Final Settlement Offer was intention to mutually resolve any claim regarding the dimensions of the structure. "Final" is referenced three separate times on the Offer. Appellant's App. 44. The Barretts even took the time and effort to prepare their own Addendum to the Final Settlement Offer accepting with conditions Gilbertson's Final Settlement Offer. Appellant's App. 77 (Exhibit D209). The Barretts accepted the offer as final. Tr. p. 323, ll. 11-14.
 According the to the district court, "the headroom issue was clearly on the table" when the parties negotiated the Final Settlement Offer. Appellant's App. 151. Mr. Barrett was aware of what he believed to be a discrepancy in the height of the foundation wall. Tr. p. 186, ll. 6-13. According to the notes of banker, Bill Kuzas, following a meeting with Mr. Barrett on
October 1, 2007, "Terry indicated that it was his misunderstanding regarding how high the basement would be as the dig elevation got changed as the projected proceeded. He did indicate that Harry explained to Rachel how the basement elevation would need to have the rest of the elevation of the home line up appropriately." Appellee's App. 5.
 Both parties carefully considered the Final Settlement Offer. The Barretts received considerable concessions under the Offer. Specifically, they received allowances and concessions of about $10,000.00 and an agreed waiver by the real estate agent of her commission in the sum of $7,000.00. Tr. p. 313, ll. 1-9; Tr. 178, ll. 18-23.
 The Barretts did not intend to follow through with closing without execution of the Final Settlement Offer. The Barretts only agreed to appear at the closing scheduled for October 8, 2007 subject to the concession of $17,000.00.
 The district court determined from the evidence offered at trial that the parties intended to resolve any claim that the dimensions of the structure did not conform to the contract. Not to be overlooks in this analysis is the acceptance of the Warranty Deed by the Barretts. Appellants' App. 23. According to the Construction/Purchase Agreement delivery and acceptance of the Deed by the Barretts was deemed and considered as full compliance by Gilbertson of all the terms of the Agreement. Appellants' App. 19 (¶17).
 In determining the intentions of the parties in executing the Final Settlement Offer, the district court was in a better position to ascertain the intentions. Contract interpretation is well-settled in this state. The intentions of the parties must be ascertained by the contract if possible. Peoples State Bk. Of Truman v. Molstad Excavating, 2006 ND 183, ¶20, 721 N.W.2d 43, 48. "If ambiguous it is proper for the district court to refer to the circumstances under which it . . . was made and the matter to which it related." Schwarting v. Schwarting, 310
N.W.2d 738,739 (N.D. 1981). The district court may also look to the inferences of the parties from the transaction as a whole. Mattco, Inc. v. Mandan Radio Ass'n Inc., 246 N.W.2d 222, 225 (N.D. 1976) (Citation Omitted). In this case, the contentiousness of the parties was high. The Barretts did not trust Gilbertson. Tr. p. 322, ll. 8-12. They had no intention of letting him back on the property. Tr. p. 185, ll. 9-11; Tr. p. 191, ll. 9-25.
 ". . .[I]f the parties' intentions cannot be determined from the writing alone and reference must be made to extrinsic evidence, then those questions in regard to which extrinsic evidence is adduced are questions of fact to be determined by the trier of fact." Keller v. Hummel, 334 N.W.2d 200, 203 (N.D. 1983) (Citations Omitted).
C. The District Court did not err in finding that Barretts didn't establish a claim for breach of contract.
 Experienced inspector, Lars Knobloch, testified at trial that it was his general impression that the workmanship at the property performed by Gilbertson was "very good". Tr. p. 284, ll. 23-25. He went on to say that most of the complaints asserted by Barretts were cosmetic, a product of living in our extreme environments and easily remedied without a lot of time or expense. Tr. p. 286, ll. 9-20; p. 290, ll. 1-18. Finally he testified that house was built with "commercially reasonable standards and was of good quality." Tr. p. 296, ll. 22-25; p. 297, ll. 1-2. This sentiment was shared by the Barretts' appraiser, William Triebwasser, who testified that the subject property was built with good quality workmanship and good construction. Tr. p. 28, ll. 18-25; p. 29, ll. 1-2.
 All the other purported defects addressed by the Barretts at trial were either accounted for in the concessions and allowances granted to Barretts in the Final Settlement Offer or were of a cosmetic nature that could have been easily rectified had the Barretts allowed Gilbertson on the property.
 The district court did not overlook the other claims for damages asserted by Barretts. After considering the evidence, the district court determined that the complaints asserted by Barretts were either addressed by the allowances or concessions made at the time of entry into the Final Settlement Offer or were related to materials rather than workmanship and the product of living in an environment of extreme weather changes. Tr. p. 152.
D. The Barretts were not relieved of their obligation to mitigate their damages by allowing Gilbertson onto the subject property.
 "A person injured by the wrongful acts of another has a duty to mitigate or minimize the damages and must " 'protect himself if he can do so with reasonable exertion or at trifling expense, and can recover from the delinquent party only such damages as he could not, with reasonable effort, have avoided.'"" Hanson v. Boeder, 2007 ND 20, ¶8, 727 N.W.2d 280, 283 (Citations Omitted). "The duty to mitigate damages is sometimes referred to as the doctrine of avoidable consequences." Id.
 The uncontroverted testimony at trial was that Barretts had no intention of letting Gilbertson on their property to address their various, numerous and ever changing bullet lists.
Q. (By Mr. Hill) You were aware that there were there is a warranty provision available in this state that allowed you to have the property warranted for a year because it was new construction?
A. (By Mr. Barrett) Yes.
Q. And you know that because there's a warranty for new construction you have to let the contractor in to fix your discrepancies, don't you?
Q. Mr. Gilbertson volunteered numerous times to come in there to fix the discrepancies, didn't he?
A. Without us knowing what he was going to do to fix them.
Q. Sir, did he volunteer to come in and fix these discrepancies?
A. He did after he had you involved, yes.
Q. Numerous times; isn't that true?
A. That's true.
Q. And you didn't let him into this property, did you?
A. He came into our property twice."
Q. To take pictures with me?
Q. You did not allow him in this property to fix anything, did you?
A. Not until I knew what was going to be done.
Tr. p. 182, ll. 1-25.
 The Barretts went on further to state:
Q. I mean isn't it fair to say this is a beautiful house?
A. It is.
Q. And most of these cosmetic changes that you've noted in your photographs, most of these would be easily remedied, wouldn't they?
A. Yes, they would.
Q. And if you would have let Mr. Gilbertson into the house he could have remedied them without much of an issue, couldn't he have?
A. We wanted the remedies well done. And that was the question that we had.
Q. And you weren't going to let Mr. Gilbertson into the house because you didn't trust him anymore?
A. Not until I saw what he was going to do; and putting putty in a crack 30-foot long is not sufficient to me.
Q. Okay. But you knew the warranty issue was a state here?
Q. And you knew that as a warranty issue you got to let the contractor in there to try to remedy them?
A. To do it adequately, yes.
Q. And you didn't do that?
A. We did not.
Tr. P. 191, ll. 2-25.
Q. Is it fair to say that not only have you not allowed Harry Gilbertson back on this property but you haven't allowed the electrician, contractor or drywaller that worked on this property to come back either?
A. That's true.
Tr. p. 201, ll. 7-11.
 "It is also an elementary principle that a party claiming damages must not be in fault in contributing to them by his own want of proper care; and such care must extend to the
protection from further loss after the act complained of." Schneidt v. Absey Motors, Inc., 248 N.W.2d 792, 797 (N.D. 1976) (Citing Nicola v. Meisner,84 N.W.2d 702, 705-706 (N.D. 1957).
 Other than snapping a few photographs of what they believed to be cosmetic deficiencies in the workmanship by Gilbertson, the Barretts did nothing to mitigate their damages. They weren't going to let Mr. Gilbertson on the property to addresses cosmetic damages and they weren't going to take steps to fix the cosmetic damages themselves. By their own admission, it is a "beautiful house". Tr. p. 191, l. 2-3. This conclusion was supported by the appraiser, William Triebwasser. He said, "From a quality standard I felt it was good quality construction. The craftsmanship when I went for the final inspection I thought was good." Tr. p. 28, ll. 18-20. The appraiser also acknowledged that for the most part the cosmetic discrepancies complained of by the Barretts would not impact the appraisal. Tr. p. 31, ll. 22-25; p. 32, l. 1.
 Gilbertson's expert, Lars Knobloch, testified as to the quality of workmanship.
Q. Did you form a general impression of what you thought the workmanship was at this property?
A. Very good. . . "
Tr. p. 284, ll. 23-25.
 By December 2007 the Barretts were living at the property. Property inspector, Donald Sakry of Sakry Inspections, LLC determined on a final inspection conducted in December 2007 that the property to be "secure and sound" and the "workmanship was quite satisfactory". Tr. p. 369, ll. 9-11; p. 369, ll. 16-18.
 Gilbertson represented multiple times that he would go into the house and fix their cosmetic complaints. Tr. p. 384, ll. 14-20.
Q. Were you prepared to go into the house?
A. I said that to them on many occasions.
Tr. p. 385, ll. 17-18.
 The Barretts assert that they were relieved of their obligation to mitigate their damages pursuant to N.D.C.C. §43-07-26. Nowhere does the cited section of the code relieve the Barretts from their duty to mitigate. The Barretts "bullet items" kept evolving as to not afford Gilbertson a reasonable opportunity to correct. Moreover, the Barretts made it clear to Gilbertson that they did not intend to allow Gilbertson back on their property.
 The Barretts further assert they were relieved of their obligation to mitigate their damages due to Gilbertson's demand that once the cosmetic items were "fixed" that he be relieved from further liability other than warranty items. Appellant's App. 127. Prior to attorney involvement, Gilbertson made efforts to enter the property to address repairs. Appellant's App. 97. The Barretts cited authority for this contention does not stand for the proposition as asserted by them. Their authority stands for the proposition that a non-defaulting party need not accept a modified contract in mitigation of its damages. Stanspec Corp. v. Jelco, 464 F.2d 1184 (10th Cir. 1972). In his case, however, by May 2008, Gilbertson through his counsel was trying to reach a global resolution of outstanding claims by Barretts and sought a release once bullet items were "fixed". Barretts were not relieved of their obligation to allow Gilbertson the opportunity to enter the property.
 The Barretts contention that there are relieved from a duty to mitigate because they were led to the conclusion that Gilbertson's product was unworkmanlike completely defies their own testimony and their experts' testimony where it is universally agreed that the Barretts received a very nice house of very nice workmanship. Whether or not Barretts would be satisfied with any remedial work performed by Gilbertson is a different consideration from their duty to permit him to try. Contrary to Barretts' sentiments every expert at the property thought Gilbertson did quality work.
E. The Barretts supplied no credible evidence of damages.
 "For the breach of an obligation arising from contract, the measure of damages, except when otherwise expressly provided by the laws of this state, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby or which in the ordinary course of things would be likely to result therefrom. No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin." Hanson v. Boeder, 2007 ND 20, ¶8, 727 N.W.2d 280, 283 (Citing N.D.C.C. §32-03-09).
 "No damages can be recovered for a breach of contract if they are not clearly ascertainable in both their nature and origin." Bumann v. Maurer, 203 N.W.2d 434, 438 (N.D. 1972) (Citing N.D.C.C. §32-03-09.
 In their Complaint, Barretts assert that they suffered damages in the sum of $17,700.00 to repair defects caused because of the breach of contract by Gilbertson in failing to construct the dwelling house in a workmanlike manner. Appellant App. 13. Barretts assert they suffered further damages in the amount of $22,000.00 for diminution of the value of the dwelling house because it was not constructed in a workmanlike manner nor according to the blueprint. Appellant's App. 14. The Barretts provided no credible evidence of either.
Q. This house was completed at the end of 2007; is that right?
Q. It's now March, 2012. You're telling me you don't have a written estimate of what it would cost to repair what you have as your discrepancies on your bullet list; is that what you're tellin' me?
Q. And you never obtained any estimate for the repair or changing the elevation of the basement until the end of 2011, December 11, 2011?
Q. So in four years you never went about to get estimates to fix any of this stuff?
A. Yes. Tr. p. 175, , ll. 18-25; p. 176, ll. 1-4.
 Ultimate purchase prices after allowances was $326,882.35. Tr. p. 176, ll. 23-25. Triebwasser said $5,000.00 reduction in value was sufficient to rectify basement if full basement was allowable in order to equalize the Barrett home with valuations from properties with full basements. Tr. p. 32, ll. 2-11.
 Per request from Barrett's, Don Sakry completed a home inspection on December 10, 2007. Tr. 353, ll. 21-22. The Barretts were living in the house at the time. Tr. p. 354, ll. 6-8. The property appeared to meet plan specification. Tr. p. 357, ll. 16-19; Appellee's App. 1 (Exhibit 13). The only flaw Mr. Sakry found in the property pursuant to the report he provided was ring-shank nails used on floor. Appellee's App. 1. Later he determined that a common nail would suffice. Tr. p. 360, ll. 2-7.
 Ms. Barrett acknowledged she has no evidence as to devaluation of the property.
Q. You've never had the house appraised since the original financing appraisal?
Q. You've never had a real estate agent come out and give you an idea of what the value of the house is?
Tr. p. 275, ll. 3-8.
 The district court correctly assessed that ". . . plaintiffs received a very nice home which fully meets their reasonable expectations". Appellant's App. 153.
 Mr. Barrett agreed:
Q. Have you had it appraised since?
Q. Have you tried to sell the property?
Q. Have you listed it for sale?
Q. Do you intend to live there.
Q. Do you like living there.
Q. Do you like the house?
Tr. 212, ll. 7-21.
 The real estate appraisal conducted for financing and prepared by William Triebwasser included the real estate. Discounting the real property from a market comparable analysis, the property structure still has a value of $315,000. The marketable value was still within the tolerable range of the purchase price of $326,882.35. It is important to recognize that the appraisal was obtained to secure financing. All the lender cares about is that the property has sufficient value to cover the debt.
 In addition, a comparable valuation was difficult to secure. The Barretts' property was unique. They made a decision to settle 30 miles from Fargo in a new development west of Kindred. As such it was difficult to find comparable properties.
Q. And it was a relatively new development?
Q. And there weren't a lot of properties out there?
A. Maybe two or three.
Q. Did that make it somewhat difficult to do the appraisal since there weren't a lot of properties in close proximity?
A. Yeah, absolutely. It's definitely challenging to appraise a rural property period.
Tr. p. 22, ll. 23-25; p. 23, ll. 1-6.
 None of the comparables used in the appraisal were in the immediate area. So different were the properties that the appraiser had to make adjustments up to 24%. Appellee's App. 7. In this case the market analysis was unreliable.
 On the cost approach the appraiser found the property had a value of $385,592. Appellee's App. 10. On the cost approach, even accounting for the real estate of $55,000, the property structure had a value of $330,592, the equivalent of the purchase price.
 The bottom line is that the Barretts got more than they bargained for. They entered into a purchase agreement for $344,000.00 and got a beautiful house for $326,882.35. If they feel they paid too much for the house they probably should have given more serious consideration to location before they decided to build where they did.
 The Barretts go on to say that it will cost $21,000 to fix the basement and offered an estimate to that effect. Appellant's App. 145. Mr. Barrett testified that he had no intention to convert the storage area into a full basement. Even if he was pondering the idea, why would anyone pay $21,000.00 for a $5,000 increase in value? Triebwasser only assigned a $5,000.00 difference between a full basement and the partial basement the Barretts contracted for. Appellee's App. 9.
 As to the other claimed $7,000.00 in incidental damages, proof offered by Barretts account for upgrades not previously contracted for and allowances already given. As stated by the district court, "To date, the work performed by others all appears to be beyond the scope of Gilbertson's contract." Appellant's App. 153. The district court described documents submitted by Barretts as vague. Appellant's App. 153. As to Mr. Barrett's testimony as to costs for repairs, the district court found such estimates as unreliable and unsubstantiated. Appellant's App. 153. Gilbertson did not need to quantify the costs of warranty work asserted by Barretts that they themselves did not establish through credible evidence.
 Relying more on dramatics than concrete evidence of tangible damages, Barretts supplied numerous photographs of various kitchen utensils stabbed into minor gaps in molding and trim to demonstrate space but supplied no evidence of costs for repair. Tr. p. 181, ll. 11-19; Tr. p. 209, ll. 2-8. Barretts also supplied estimates for materials that were never used at the property by that supplier. Tr. p. 329, ll. 18-24.
F. The District Court did not err in refusing to award attorney fees.
 For an award of attorney fees to be had, the district court must find the assert claim to be frivolous. N.D.C.C. §28-26-01(2). It is not sufficient to be the prevailing party on dismissal of the claim.
 As part of its caption to this portion of their brief, the Barretts claim they should have been awarded attorney fees relating to Gilbertson's counterclaim for emotional distress. However, the Barretts do not discuss the emotional distress claim in their argument. On October 6, 2011, Gilbertson voluntarily withdrew his emotional distress claim. Appellant's App. 73.
 In its Order denying Cross-Motions for Attorney Fees dated May 16, 2012, the trial court determined that "In short, I did not award attorney's fees to the Barretts when the counterclaim was initially dismissed as I did not then feel the issue of defamation had been asserted in a frivolous manner. Nothing has since changed that impression." Appellant's App. 162.
 The district court concluded that the claim for defamation was not frivolous in nature and refused to award attorney fees In the same Order, the district Court refused to award Gilbertson attorney fees against the Barretts finding that their claims were not "patently without merit" even though they "failed to sustain their burden in multiple respects". Appellant's App. 162.
 The district court is in the best position to determine the frivolous nature of a claim. While Barretts mock the district's court's sentiment that it did not feel the issue of defamation had been asserted in a frivolous manner, it is exactly the district court's discretion or feeling that is relevant.
 As this Court determined:
An award of attorney fees under N.D.C.C. §28-26-01 "lies within the sound discretion of the district court." Strand v. Cass County, 2006 ND 190, ¶17, 721 N.W.2d 374. "A district court abuses its discretion when it acts arbitrarily, unconscionably, or unreasonably, or when its decision is not the product of a rational mental process leading to a reasoned determination." Forster v. West Dakota Veterinary Clinic, Inc., 2004 ND 207, ¶17, 689 N.W.2d 366.
City of Fargo v. Malme, 2008 ND 172, ¶8, 756 N.W.2d 197.
 There was not a show of a complete absence of actual facts or law that a reasonable person could not render a judgment in Gilbertson's favor and therefore a denial of attorney fees was appropriate.
 Gilbertson respectfully requests that the appeal be dismissed; that the Judgment of April 30, 2012 (Appellant's App. 156) and the Order Denying Cross-Motions for Attorney's Fees of May 16, 2012 (Appellant's App. 162) be affirmed; and, that this Court award reasonable attorney fees pursuant to Rule 38 of the North Dakota Rules of Appellate Procedure as Barretts have failed to clearly articulate anything clearly erroneous with the district court's opinion, as required by case law, and as such, this appeal is frivolous.
RESPECTFULLY SUBMITTED THIS 20th DAY OF NOVEMBER, 2012.
|HILL LAW OFFICE, PLLC|
|/s/Timothy P. Hill___|
|TIMOTHY P. HILL (04503)|
|1351 Page Drive, Suite 202|
|P.O. Box 9043|
|Fargo, ND 58106-9043|
|(701) 293-7612/FAX (701) 293-7621|
|Attorneys for Defendant/Appellee|