|10:00am||Tuesday, December 4, 2012|
Terence Barrett and Rachel Barrett, Plaintiffs and Appellants
Harry Gilbertson, d.b.a., Harry
Gilbertson Construction, Defendant and Appellee
|Appeal from:||East Central Judicial District, Cass County, Judge Wickham Corwin, 09-2010-CV-02587|
|Nature of Action:||Contracts|
Appellant's Statement of the Issues:|
1. Did the Barretts establish a breach of contract by Gilbertson concerning the headroom of the basement?
2. Was Barretts' lawsuit against Gilbertson based on matters that contractually survived their closing?
3. Did the Barretts establish a breach of contract by Gilbertson concerning his duty to correct work that was defective?
4. Have the Barretts been excused from their duty to mitigate damages?
a. Did Gilbertson's failure to promptly correct defects excuse the duty to mitigate damages?
b. Did Gilbertson's requirement of a release excuse the duty to mitigate damages?
c. Did the Barretts act reasonably when they refused to risk further injury by Gilbertson and thereby excuse their duty to mitigate damages?
5. Was the trial court's finding of the market value of the building clearly erroneous?
6. Under the circumstances of this case, do damages based upon market value alone produce a fair and just result?
7. Should the Barretts be awarded their attorney fees relating to Gilbertson's counterclaim for slander and emotional distress?
Appellee's Statement of the Issues:
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.
Generated from Supreme Court Docket on 12/31/2012