Supreme Court Seal
South Carolina
JUDICIAL DEPARTMENT
Site Map | Feedback
2011-UP-525 - Creative Communication Services v. Travelers Property

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Creative Communication Services, Inc., Appellant,

v.

Travelers Property and Casualty Company of America and PAD Able, Inc. d/b/a Harold R. Beard Agency, Defendants,

Of Whom PAD Able, Inc. d/b/a Harold R. Beard Agency is the Respondent.


Appeal From Richland County
Alison Renee Lee, Circuit Court Judge


Unpublished Opinion No.  2011-UP-525 
Heard September 14, 2011 – Filed December 5, 2011


REVERSED AND REMANDED


Richard C. Detwiler and Ian D. McVey, both of Columbia, for Appellant.

PER CURIAM:  Creative Communication Services (CCS) appeals the amount of damages the trial court awarded on its claim for negligent misrepresentation against PAD Able, Inc. d/b/a Harold R. Beard Agency (PAD Able).  It argues the trial court erred in applying the doctrine of mitigation of damages in favor of a defaulting defendant.  CCS asserts the doctrine is an affirmative defense, which must be pleaded.

Although Rule 8(c) of the South Carolina Rules of Civil Procedure does not specifically list mitigation of damages as an affirmative defense, it requires the defendant to affirmatively set forth in addition to the listed defenses "any other matter constituting an avoidance or affirmative defense." 

Under our former code pleading, the South Carolina Supreme Court recognized mitigation of damages must be pleaded and proved by the party asserting it.  White v. Metcalf, 174 S.C. 350, 356, 177 S.E. 371, 374 (1934).  More recently, our courts have recognized the burden of proof lies on the party asserting mitigation.  See Sloan Constr. Co. v. Southco Grassing, Inc., Op. No. 27061 (S.C. Sup. Ct. filed Oct. 31, 2011) (Shearouse Adv. Sh. No. 38 at 32, 40) ("The defendant has the burden of establishing the plaintiff's lack of due diligence in mitigating damages."); Moore v. Moore, 360 S.C. 241, 262, 599 S.E.2d 467, 478 (Ct. App. 2004) (stating the party who claims damages should have been minimized has the burden of proving they could reasonably have been avoided or reduced); cf. Youmans v. S.C. Dep't of Transp., 380 S.C. 263, 281-82, 670 S.E.2d 1, 10 (Ct. App. 2008) (stating defendant asserting an affirmative defense bears the burden of its proof).  Generally, the failure to plead an affirmative defense constitutes a waiver of that defense.  Earthscapes Unlimited, Inc. v. Ulbrich, 390 S.C. 609, 615, 703 S.E.2d 221, 224 (2010).  A party cannot benefit from an affirmative defense that was never pleaded.  Id. at 616, 703 S.E.2d at 225.

We find the trial court erred in applying the doctrine of mitigation of damages sue sponte.  Accordingly, the matter is remanded to the trial court for a recalculation of damages.[1] 

REVERSED AND REMANDED.

HUFF, PIEPER, and LOCKEMY, JJ., concur. 


[1] We further note PAD Able failed to file a Respondent's Brief with this court.  Rule 208(a)(4), SCACR, provides in part: "Upon the failure of respondent to timely file a brief, the appellate court may take such action as it deems proper."  Such action may include reversal.  Turner v. Santee Cement Carriers, Inc., 277 S.C. 91, 96, 282 S.E.2d 858, 860 (1981); Robinson v. Hassiotis, 364 S.C. 92, 93 n.2, 610 S.E.2d 858, 859 n.2 (Ct. App. 2005); see also Wierszewski v. Tokarick, 308 S.C. 441, 444 n.2, 418 S.E.2d 557, 559 n.2 (Ct. App. 1992) (stating where respondent failed to file a brief, "it [was] proper to reverse on the points presented rather than to search the record for reasons to affirm").