Litigator, Offer Thy Proof

Choi v. Brixmore Holdings provides a good example of when an offer of proof is required to preserve a matter for appellate review:

“Although it is the landlord’s duty to mitigate damages, the tenant has the burden of proving that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced its damages. Neither the Guptas nor Choi offered or sought to offer evidence about Brixmor’s failure to relet the premises. Nor did they make an offer of proof of the amount of damages they contend Brixmor should have mitigated by undertaking an investigation before entering into the assignment, even though the trial court invited them to ‘submit an Offer of Proof on that via affidavit’ after sustaining Brixmor’s objection.”

No. 05-20-00516-CV (July 21, 2022) (mem. op.) (citation omitted).