Barrett v. Gilbertson
Terence Barrett and Rachel Barrett, Plaintiffs and Appellants
Harry Gilbertson, d.b.a., Harry
Gilbertson Construction, Defendant and Appellee
East Central Judicial District,
Judge Wickham Corwin
|Nature of Action:||Contracts|
|Term:||12/2012  Argument: 12/04/2012|
|ND cite:||2013 ND 35|
827 N.W.2d 831
Listen to recording of oral argument in MP3 format
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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|1||06/26/2012 NOTICE OF APPEAL: 06/26/2012|
|2||06/26/2012 ORDER FOR TRANSCRIPT: 06/26/2012|
|3||07/27/2012 ELEC. RECORD ON APPEAL DATED 07/26/2012 (ENTRY NOS. 1-278)|
|4||08/15/2012 MOT. EXT/TIME TRANSCRIPT|
|5||08/15/2012 ACTION BY TRIAL COURT. Granted: 09/24/2012|
|6||09/10/2012 TRANSCRIPT DATED 3/6/12 & 3/7/12 & C.O.S.|
|7||09/10/2012 DISK - Transcripts dated 3/6/12 & 3/7/12|
|8||10/19/2012 APPELLANT BRIEF|
|9||10/19/2012 APPELLANT APPENDIX|
|10||10/22/2012 DISK (ATB)|
|11||11/20/2012 NOTICE OF ORAL ARGUMENT SENT|
|12||11/20/2012 APPELLEE BRIEF|
|13||11/20/2012 APPELLEE APPENDIX|
|14||11/20/2012 DISK-AEB (E-MAILED)|
|15||11/28/2012 REPLY BRIEF|
|17||12/04/2012 APPEARANCES: David Garaas/Timothy Hill|
|18||12/04/2012 ARGUED: D. Garaas/T. Hill|
|19||12/04/2012 ORAL ARGUMENT WEBCAST|
|20||02/26/2013 DISPOSITION: AFFIRMED|
|21||02/26/2013 SPLIT OPINION: Sandstrom, Dale V.|
|22||02/26/2013 Concur: Crothers, Daniel John: CONCUR|
|23||02/26/2013 Costs on appeal taxed in favor of the Appellee|
|24||02/27/2013 Judgment Sent to Parties|
|26||04/04/2013 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|