Barrett v. Gilbertson

20120279 Terence Barrett and Rachel Barrett, Plaintiffs and Appellants
v.
Harry Gilbertson, d.b.a., Harry
Gilbertson Construction, Defendant and Appellee

Appeal from: District Court, East Central Judicial District, Cass County
Judge Wickham Corwin
Nature of Action: Contracts
Counsel:
Appellant: David Alan Garaas
Appellee: Timothy P. Hill
Term: 12/2012   Argument: 12/04/2012  10:00am
ND cite: 2013 ND 35
NW cite: 827 N.W.2d 831

Listen to recording of oral argument in MP3 format

Issues: 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.

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Docket entries:
106/26/2012 NOTICE OF APPEAL: 06/26/2012
206/26/2012 ORDER FOR TRANSCRIPT: 06/26/2012
307/27/2012 ELEC. RECORD ON APPEAL DATED 07/26/2012 (ENTRY NOS. 1-278)
408/15/2012 MOT. EXT/TIME TRANSCRIPT
508/15/2012 ACTION BY TRIAL COURT. Granted: 09/24/2012
609/10/2012 TRANSCRIPT DATED 3/6/12 & 3/7/12 & C.O.S.
709/10/2012 DISK - Transcripts dated 3/6/12 & 3/7/12
810/19/2012 APPELLANT BRIEF
910/19/2012 APPELLANT APPENDIX
1010/22/2012 DISK (ATB)
1111/20/2012 NOTICE OF ORAL ARGUMENT SENT
1211/20/2012 APPELLEE BRIEF
1311/20/2012 APPELLEE APPENDIX
1411/20/2012 DISK-AEB (E-MAILED)
1511/28/2012 REPLY BRIEF
1611/30/2012 DISK-RYB
1712/04/2012 APPEARANCES: David Garaas/Timothy Hill
1812/04/2012 ARGUED: D. Garaas/T. Hill
1912/04/2012 ORAL ARGUMENT WEBCAST
2002/26/2013 DISPOSITION: AFFIRMED
2102/26/2013 SPLIT OPINION: Sandstrom, Dale V.
2202/26/2013 Concur: Crothers, Daniel John: CONCUR
2302/26/2013 Costs on appeal taxed in favor of the Appellee
2402/27/2013 Judgment Sent to Parties
2503/28/2013 MANDATE
2604/04/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE

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