Cash America International v. Hampton Place
In Cash America International v. Hampton Place, 955 S.W.2d 459, 462-63 (Tex. App. 1997), the court considered whether certain evidence proffered by the breaching tenant met the Austin Hill Country Realty, Inc., v. Palisades Plaza burden of proof standard, requiring the question of mitigation to go to the jury.
On cross-examination, a partner for the landlord partnership entity testified that he placed a "for rent" sign in the window and placed some ads in the local newspaper, but never listed the property with a commercial broker. Id.
The tenant's expert witness testified that a "for rent" sign in the window was insufficient, and described the steps that a landlord should undertake to actively market the property; the landlord's expert did not counter these points, but instead spoke about the best uses for the property. Id.
The court ruled that this evidence satisfied the defendant's burden, and failing to give the jury instruction regarding mitigation was reversible error. Id.
Thus, in Cash America International, the tenant met its burden with both expert testimony and the cross-examination of the landlord.