S. Michael Citak

The appellant vendor appealed the dismissal of its breach of contract claim arising from a failed residential real estate transaction after the respondent purchaser repudiated before closing.

The central issue was mitigation: although the defaulting purchaser bore the burden of proving failure to mitigate, the evidentiary record supported the motion judge's finding that the vendor failed to take reasonable steps to market the property, including by failing to produce records of any property-specific marketing efforts during the six-month resale period.

The court held that, given those factual findings, the motion judge was entitled to assess damages using the property's appraised value as of the breach date rather than the later resale price.

The court also rejected the argument that summary judgment became inappropriate because the appellant's own mitigation evidence was deficient.

Appeal dismissed with costs.