Dysart v. Cummings

Christian Dysart and Mildred Dysart (plaintiffs) entered into a contract to buy a house from William Cummings and Kimberly Cummings (defendants) on August 26, 2003. Under the terms of the agreement, the Dysarts paid a deposit. An addendum provided that the Dysarts had the option to terminate the agreement and recoup the deposit if a reasonable estimate of the cost of repairs, including repairs for general, foundational, and termite damage, was $10,000 or more. The contract further stated that the Dysarts should have the home inspected and notify the Cummings of any necessary repairs in writing within 14 days of the contract’s execution. On September 8, 2003, the Dysarts’ home inspector reported significant foundational damage, and a structural engineer estimated the cost of the damages at over $10,000. On September 9, Bill Sewell, the Dysarts’ real-estate agent, faxed a notice to Mary Williams, the Cummings’ agent, stating that the Dysarts had decided to terminate the contract in accordance with the addendum. The same day, the Cummings placed the house back on the market. Thereafter, a construction company gave the Dysarts an estimate for the cost of repair at $58,910.23, and the Dysarts demanded a return of the deposit. The Cummings refused and hired a contractor who calculated the cost of repair at less than $10,000 and went on to complete the repairs for $6,986.11. The Dysarts brought suit against the Cummings to recover the deposit, alleging a breach of contract. The Cummings counterclaimed, and the Dysarts moved for summary judgment. The trial court granted the Dysarts’ motion, and the Cummings appealed.