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S Development Company v. Pima Capital Management Co.8/30/2001
s a failure to mitigate damages and we find no direct authority for that proposition.").
The appellants cite Burris v. City of Phoenix, 179 Ariz. 35, 875 P.2d 1340 (App. 1993), for the proposition that under all circumstances, settlement offers may be admitted on a mitigation of damages issue. To that extent, we find that Burris is not dispositive on this issue and is distinguishable from the instant case. Burris involved the admission of the City of Phoenix's offers to compromise Burris's employment discrimination claim. The trial court concluded that the "settlement discussions were admissible concerning Burris's failure-to-hire claim but not on his wrongful discharge claim." Id. at 41, 875 P.2d at 1346. The court of appeals recognized that " he trial court did not consider evidence of the settlement offer on the issue of the validity of Burris's claim; instead, the court considered the offer on the question of mitigation of Burris's damages [on Burris's failure-to-hire claim]." Id. The court of appeals then concluded that "Rule 408 does not bar this use of the evidence of the settlement discussions and offer." Id. Without second-guessing the wisdom of the court in Burris, the admission of the settlement offers in relation to Burris's failure-to-hire claim may have been appropriate. The court in Burris did not, however, extend the exceptions to the admissibility of settlement offers precluded by Rule 408. Rather, the admission of the settlement offers at issue in Burris is unique to the facts of that case.
Here, that unique quality is not present. Evidence of offers to rescind purchase contracts under a theory of mitigation of tort-based damages is not relevant, even if Rule 408 would allow for the wholesale admission of any evidence tending to support a mitigation of damages defense.
The failure to mitigate damages might arguably constitute a proper purpose for admitting evidence of settlement negotiations under [Rule] 408, but the issue is irrelevant in this case because the plaintiffs did not have the duty to mitigate their damages by accepting the offer to rescind. As the victims of misrepresentation, the plaintiffs could elect to either affirm the contract and sue for damages or rescind the contract. Price v. Long Realty, Inc., 502 N.W.2d 337, 340 (Mich. Ct. App. 1993).
We see no abuse of the trial court's discretion by prohibiting the evidence of the appellants' offer to rescind.
VI. The Trial Court's Refusal to Give an Avoidable Consequences Instruction
The appellants also argue that the trial court erred by failing to give an avoidable consequences instruction, that is, an instruction to the jury that a tort plaintiff has the duty to mitigate its damages and "cannot recover for losses due to 'avoidable consequences.'" Monthofer Invs. Ltd. P'ship v. Allen, 189 Ariz. 422, 428, 943 P.2d 782, 788 (App. 1997). The appellants point to no evidence in the record that an avoidable consequences instruction would have been warranted. See Herman v. Sedor, 168 Ariz. 156, 158, 812 P.2d 629, 631 (App. 1991) ("It is reversible error to instruct on an issue if there is no evidence to support the instruction."). The appellants merely give an unsupported proposition that the appellees "could have avoided the consequential damages . . . had [the appellees] made the required repairs earlier."
The appellees, however, are seeking the measure of damages between what they paid for the buildings and the buildings' fair market value at the time of the sale. We conclude that the trial court did not abuse its discretion by refusing to give an avoidable consequences instruction. The instruction would not have conformed to the evidence pres
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