Brooks v. Doherty, Rumble & Butler , 1992 Minn. App. LEXIS 150 ( 1992 )

SHORT, Judge

(concurring in part, dissenting in part).

I concur as to the qualified privilege issue. Because neither party moved for amended findings or a new trial our scope of review is limited. Louko v. Village of Hibbing, 222 Minn. 463, 465, 25 N.W.2d 234, 235 (1946). Thus, the issue of whether the trial court erred in ruling that DRB was protected from liability for defamation by qualified privilege was waived and is not properly before us. Sauter v. Wasemiller, 389 N.W.2d 200, 202 (Minn.1986).

I dissent and would affirm the trial court’s award of contract damages. First, appellant waived this issue by not moving for a new trial or amended findings. Sauter, 389 N.W.2d at 202. Second, the record demonstrates (a) both parties were advised prior to submission of the case that the trial court would reduce any award of contract damages by the amount of professional income received by Brooks, (b) neither party objected to this decision or the related jury instructions, and (c) Brooks testified he was entitled under the parties' contract to be paid $4,583 per month for 18⅛ months (a total of $83,000). Under these facts, Brooks is barred from challenging the trial court’s mitigation of contract damages. See Soules v. Independent School Dist. No. 518, 258 N.W.2d 103 (Minn.1977). In addition, there is ample evidence to support the trial court’s decision to reduce the award of contract damages. See Levienn v. Metropolitan Transit Comm’n, 297 N.W.2d 272, 273 (Minn.1980).

I also dissent and would modify the trial court’s award of fraud damages. While Brooks may recover in tort and contract, he cannot aggregate damages so as to collect a double recovery. See McDonald v. Johnson & Johnson, 776 F.2d 767, 769 (8th Cir.1985); E.H. Boerth v. LAD Properties, 82 F.R.D. 635 (D.Minn.1979). Under the facts of this case, the award of fraud damages should be reduced by a total of $54,-062 (the $11,797 Brooks received in a settlement with his subsequent employer, the $1,185 he received in unemployment compensation, and the $41,080 in contract damages).