Under Texas law the doctrine of mitigation of damages is an affirmative defense that
"prevents a party from recovering for damages resulting from a breach of contract
that could be avoided by reasonable efforts on the part of the plaintiff." Great Am. Ins.
Co. v. N. Austin Mun. Utility Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995).
MITIGATION OF DAMAGES - FAILURE TO MITIGATE AS AFFIRMATIVE
The mitigation-of-damages doctrine requires an injured party, following a breach, to exercise reasonable
care to minimize his damages if it can be done with slight expense and reasonable effort. Allen v. Am.
Gen. Fin., Inc., 251 S.W.3d 676, 686 (Tex. App.-San Antonio 2007, pet. granted) (citing Great Am. Ins. Co.
v. N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995)); Cotten v. Weatherford Bancshares,
Inc., 187 S.W.3d 687, 708 (Tex. App.-Fort Worth 2006, pet. denied).
Montgomery v. Byrd (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)(Seymore)
(breach of contract and counterclaim, offsetting claims after dissolution of business relationship with
settlement and release; employees brought lawsuit that entailed liability for both parties)
(directed verdict should have been granted, only attorney's fees issue for the jury to decide)
REVERSED AND REMANDED: Opinion by Justice Seymore
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-01015-CV Chester Montgomery v. Richard Byrd
Appeal from County Civil Court at Law No 4 of Harris County
Trial Court Judge: Roberta Anne Lloyd
Byrd cites Montgomery's testimony that, if he had paid the Marshall judgment when rendered instead of
pursuing appeals, his expenses would have been less and he would have still owed money to Byrd under
the agreement. We note that Byrd testified he wanted Montgomery to defend both employee suits
because Byrd strongly believed he had committed no wrongdoing. Nonetheless, Montgomery incurred all
of the Marshall expenses before he demanded reimbursement from Byrd. It was Byrd's subsequent refusal
to pay a portion of the expenses that constituted breach of the agreement. Therefore, Montgomery's
decision to appeal the Marshall judgment did not constitute a failure to mitigate damages resulting from
Randall's Food and Drugs, LP v. Patton (Tex.App.- Houston [1st Dist.] Aug 21,2008)(Radack)(lease law
commercial, sublease, duty to mitigate damages, anticipatory repudiation)
AFFIRM TC JUDGMENT: Opinion by Chief Justice Radack
Before Chief Justice Radack, Justices Keyes and Higley
01-06-00821-CV Randall's Food and Drugs, L.P. v. Bill Patton d/b/a Linux Professional Group
Appeal from Civil County Court at Law No 4 of Harris County
Trial Court Judge: Hon. Roberta A. Lloyd
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