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Unpublished Opinion No.  2011-UP-525 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").