Barrett v. Gilbertson - No. 20120279
Terence Barrett and Rachel Barrett appeal from a judgment dismissing their claims against Harry Gilbertson, doing business as Harry Gilbertson Construction, in a contract dispute.
The Barretts and Gilbertson entered into a contract for the construction of a house and the sale of the property to the Barretts. After the sale was complete, the Barretts sued Gilbertson for breach of contract and diminution of value, alleging Gilbertson failed to construct the house in a workmanlike manner and according to the blueprints. Gilbertson counterclaim for breach of contract, impossibility of performance, defamation, and emotional distress. The counterclaim was later dismissed. After a court trial, the district court dismissed the Barretts' claims, finding Gilbertson did not breach the contract, any claims for breach of contract were clearly extinguished by the parties' settlement prior to closing on the property, the Barretts failed to give Gilbertson an opportunity to fix any defects, and the claims for diminution in value was not supported by credible evidence. The court denied both parties' motions for attorney's fees.
On appeal, the Barretts argue they established Gilbertson breached the contract, their claims survived the closing, any duty they had to mitigate damages was excused, the district court's finding of the market value of the property is clearly erroneous, and the court erred in denying their motion for attorney's fees.