Litigation

Burden of Proof Required to Prove Mitigation of Damages

By Branham & Day

A recent opinion from the Tennessee Court of Appeals highlights the burden that lies with a defendant who is attempting to prove mitigation of damages.  In ABC Painting Co. v. White Oaks Apartments, the plaintiff brought suit for defendant’s failure to pay over $21,000.00 in invoices for painting work done at defendant’s apartment units.  The defendant counterclaimed that the plaintiff had not done the painting in a “workmanlike manner” as required by the parties’ contract.

At a bench trial, the plaintiff produced invoices for completed work, each of which was signed by the defendant, documenting the full amount of damages sought.  Further, plaintiff introduced testimony that the defendant had never complained about substandard work and plaintiff had promptly done any touch-up work requested.

In response, the defendant offered testimony that, according to their estimation, approximately 75% of the apartment units were painted in a substandard manner.  However, defendants failed to keep any documentary evidence to back up this allegation.  Additionally, while the defendant claimed that another painter had been hired to fix the substandard paint jobs, the invoices submitted from this second painter predated any of the work done by the plaintiff.  This second painter did testify that a number of the apartments were painted in a substandard manner, but he could not specify which apartments these were or document how much money he had been paid to correct the plaintiff’s work.

The trial court awarded the plaintiff $13,500.00 for the unpaid work, as well as a portion of their attorney’s fees pursuant to the terms of the contract.  On appeal, this decision was reversed and the plaintiff was awarded the full amount of their damages.  The Court of Appeals noted: 

Although the party seeking damages has the burden of proving those damages, the burden is on the defendants who breached the contract to prove what amounts should be offset in mitigation of damages. And “[w]hile there is no mathematical formula for calculating damages, the proof of damages must be as certain as the nature of the case permits and must enable the trier of fact to make a fair and reasonable assessment of the claimed damages.” (citations omitted)

Based on the foregoing, the court found that the defendant’s proof of mitigation was speculative and unsubstantiated by a preponderance of the evidence and awarded the full value of the plaintiff’s damages.

Read the entire opinion here.

Full post as published by Tennessee Business Litigation Law Blog on January 05, 2007 (boomark / email).