_______________________________ GRANTED IN PART: June 20, 1996 _______________________________ GSBCA 12584 KMS DEVELOPMENT CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Lee H. Durst, Jose G. Landeros, and Nancy M. Padberg of Durst & Associates, Corona Del Mar, CA, counsel for Appellant. Robert W. Schlattman, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), DEVINE, and DeGRAFF. DeGRAFF, Board Judge. In February 1987, KMS Development Company (KMS) and the General Services Administration (GSA) entered into a contract for the lease of office space. In January 1993, KMS submitted a claim to the contracting officer for damages, asserting that the parties entered into two implied contracts and an express contract in addition to their lease contract, and alleging that GSA breached all of its contracts with KMS. The contracting officer decided that KMS was entitled to a small amount for a tax adjustment plus $5,963.50 for the estimated cost of restoring the premises after GSA employees performed some construction work. The contracting officer denied the remainder of the claim, and this appeal followed. GSA filed a motion for summary relief. In a decision dated April 19, 1995, we held that GSA did not breach the February 1987 lease by terminating it without providing proper notice; that the parties did not enter into another express contract; and that the parties did not enter into any implied contract. We also held that one portion of KMS's claim, which requested damages to compensate for the cost of restoring the leased premises, remained before us for decision. KMS Development Co. v. General Services Administration, GSBCA 12584, 95-2 BCA 27,663. A hearing was held on September 12 and 13, 1995, and the parties submitted post-hearing briefs and reply briefs. Based upon the exhibits contained in the record and the testimony elicited at the hearing, we grant, in part, the remainder of the appeal. Findings of Fact On February 20, 1987, GSA agreed to lease from KMS 9,999 square feet of office space at the Cupania Business Center in Buena Park, California. The lease provides that GSA had the right to "make alterations" to the leased premises. Appeal File, Exhibit 1. In late 1990, GSA asked KMS about the possibility of leasing approximately 18,000 square feet of space (including the space already leased) at the Cupania Business Center. Transcript at 22; Appeal File, Exhibit 16. The Immigration and Naturalization Service (INS) intended to open a political asylum office in the Los Angeles, California area, and the INS was willing to locate that office in the Cupania Business Center. Appeal File, Exhibit 17. As we explained in our April 19, 1995 opinion, the parties never entered into a contract for more than the original 9,999 square feet of space. KMS, however, took some steps to make 18,000 square feet of space available for GSA's use. In a November 20, 1990 letter to GSA, KMS stated that it wanted to get a "running start" so that it could have the premises ready for occupancy by March 1, 1991. Appeal File, Exhibit 16. On January 21, 1991, KMS issued a solicitation for a construction contractor. Appeal File, Exhibit 33 at 438. On January 25, 1991, KMS submitted construction documents to the city. Appeal File, Exhibits 8 (Tab 2, Item 11), 33 at 390. On January 27, 1991, KMS wrote a letter to one of its consultants. In the letter, KMS explains that Buena Park city officials were going to require KMS to acquire a conditional use permit in order to use the Cupania Business Center space for the political asylum office. KMS states in its letter that the city also had concerns about the number of available parking spaces. The letter states that KMS had already spent "considerable sums" to upgrade the space. Appeal File, Exhibit 10. On February 22, 1991, KMS applied to the city for a parking variance. Appeal File, Exhibit 8 (Tab 2, Item 11). In a February 25, 1991 letter to GSA, KMS stated that it was readying areas for use by GSA and that KMS's ability to open the political asylum office on April 1, 1991, would depend upon the "attitude/ cooperation" of the city. Appeal File, Exhibit 22. In a letter to GSA dated March 4, 1991, KMS states that it had filed variance requests with the city of Buena Park, readied the premises for construction, and begun negotiating for parking spaces. The letter says that construction was being performed by Hamilton Contractors. KMS also states that the city's processing of KMS's permit requests would make opening on April 1, 1991, "near impossible." Appeal File, Exhibit 25. On March 14, 1991, an architect with J. Shimozono & Associates wrote a letter to GSA concerning the Cupania Business Center. The letter states that J. Shimozono & Associates understood "the great task" that GSA had ahead of it in order to have "the facility ready for the April 1, 1991 opening." The letter goes on to say that the "original General Contractor, Hamilton Contractors" had placed plastic over the existing carpet, built some cabinets, removed acoustical panels from the suspended ceiling, and ordered some materials. Appeal File, Exhibit 4. Between March 14 and 19, 1991, four GSA employees worked regular and overtime hours in an attempt to complete alterations to the Cupania Business Center. The GSA official who authorized the overtime explained that work would be required virtually non- stop in order to complete construction in time for the INS to open its political asylum office on April 2 as required by Congress. Appeal File, Exhibit 33 at 10-18; Transcript at 186. The GSA employees worked within the 9,999 square feet leased by GSA. Transcript at 35, 63. Jerry Oliver, one of the GSA employees who worked at the site, first visited the building on a Thursday or Friday evening, for approximately thirty to forty-five minutes. Transcript at 170. He found that the carpet was "in bad shape." Transcript at 165. The carpet was dirty, a few hundred square yards of carpet were damp, and there was plastic covering the carpet in some areas. Transcript at 165-66, 178, 181. The condition of the carpet was such that he would not have accepted it for use by the Government. Transcript at 170. There were also some ceiling tiles missing. Transcript at 165, 178. Mr. Oliver and a second GSA employee came to the Cupania Business Center the next Saturday morning to start work. Transcript at 170-71. They spent approximately four hours taking out a door and a wall approximately ten feet long, just inside the entrance. Transcript at 171. They spent the afternoon transferring measurements from drawings to the carpet using a chalk line, and then cutting the carpet where they intended to install floor track. Transcript at 172-73. The two GSA employees came back to the building on Sunday morning and continued with the work they had begun on Saturday. Transcript at 173. They also spent between ten and fifteen minutes taking out some light fixtures. They lowered the fixtures so that they were hanging from the electrical conduit. When they removed the fixtures, they pushed aside adjacent ceiling tiles. Transcript at 173-74. Mr. Oliver and two other employees went back to the Cupania Business Center the following weekend and spent the day unloading sheets of drywall. They performed no other work that day. Sometime during the next week, Mr. Oliver went back to the Cupania Business Center to oversee a moving company which was hauling the drywall to another location. Transcript at 175-76. Mr. Oliver stated that he left the building in the same condition as he found it, except for tearing out the door and ten feet of wall, cutting the carpet, and lowering the light fixtures. He estimated that it would have taken approximately fifteen or twenty minutes to put the light fixtures back into the ceiling, because they were functional and connected electrically. Transcript at 176-77. He was the last GSA employee to leave the building. Transcript at 177. He never saw anyone from KMS at the building while he and the other GSA employees were working there. Transcript at 177. No GSA electrician ever came on site. No one from GSA worked on the air conditioning. Transcript at 178. On March 20, 1991, GSA's contracting officer sent a letter to KMS, terminating the February 20, 1987 lease effective June 18, 1991. Appeal File, Exhibit 5. KMS's request for a conditional use permit and a variance were discussed at the March 27, 1991 meeting of the city's planning commission. The city decided to continue the hearing and defer action until April 10, 1991. Appeal File, Exhibit 31. A "governmental relations expert" hired by KMS spoke with a member of the city council, the city manager, and a member of the city planning staff concerning KMS's request for a conditional use permit and a variance. The member of the city council and the city manager stated that they were opposed to the proposed use of the building, although they would not interfere with the city planning staff. The member of the city planning staff stated that the staff had many concerns about the project, primarily concerning parking. The governmental relations expert explained to KMS that, based upon these conversations, he concluded that the city would not expedite KMS's request in order to meet KMS's schedule. He also explained that he advised KMS to withdraw its conditional use permit and variance requests. Appeal File, Exhibit 10. On April 24, 1991, KMS informed GSA that KMS intended to withdraw its request for a conditional use permit and parking variance request. KMS stated that it had reached the conclusion that the city was unwilling to allow the building to be used for an INS political asylum processing center. KMS notified the city that it was withdrawing the requests on April 25, 1991. Appeal File, Exhibit 10. Jim Shimozono testified at the hearing. Mr. Shimozono is a general partner of KMS. Exhibit 1. Mr. Shimozono testified that GSA left the premises in a shambles. Transcript at 48. During his testimony, Mr. Shimozono referred to photographs that he believed he took "at the time when the GSA decided to take over the project." Transcript at 30-31. He did not know the date that the photographs were taken. Transcript at 31. He stated that, as shown in the photographs, ceiling tiles and grid members had been taken down and damaged, some electrical work had been performed, light fixtures were hanging down from the ceiling, air conditioning ductwork was damaged, the carpet was cut, and some of the plastic that covered the carpet was damaged. Transcript at 36-42. After having heard all of the other witnesses testify at the hearing, Mr. Shimozono testified that, before GSA came onto the job site, KMS had not removed any ceiling tiles or light fixtures, had not cut any electrical wiring, and had not done anything to the air conditioning ductwork. Transcript at 199. In addition, after hearing all of the other witnesses testify, Mr. Shimozono testified that the photographs were taken "after the GSA did their work." Transcript at 198. Sometime after GSA left, KMS hired Carl Story to make repairs to the building so that it was in condition to be shown to prospective tenants. Transcript at 49-50, 135, 143. Mr. Story testified at the hearing concerning the condition of the 9,999 square feet when he did his construction work. He stated that the photographs that Mr. Shimozono referred to in his testimony depicted the condition of the premises when he saw it. Transcript at 137. Mr. Story rebuilt the ceilings and the walls and made the area ready for carpet. He repaired the wiring and lighting. Transcript at 138. Mr. Story testified that there were several places in the building that had water leaks. Some "large areas" of carpet were water damaged, and some of the carpet and carpet pad was rotten. Some ceiling tiles had collapsed due to water damage. Transcript at 139-41, 148. Mr. Story also worked in 1993 and 1994, to build out part of the premises for new tenants. Transcript at 65. KMS submitted an uncertified claim, dated May 16, 1991, to the contracting officer. In this submission, KMS states that the GSA workers removed the plastic covering the carpet, cut the carpet so that much of it was ruined, removed acoustical ceiling tiles and light fixtures, left wiring and the heating/ventilation distribution system in disarray, and performed some demolition. Hamilton Contractors estimated that it would cost $21,730 to restore the premises to a marketable condition. Appeal File, Exhibit 8. KMS submitted a certified claim, dated January 15, 1993, to GSA. GSA received this claim on January 19, 1993. The claim requests the following: $ 157,527.92 for the rent that KMS would have collected from GSA if GSA had not breached the February 20, 1987 lease by leaving without providing KMS with notice. 320,840.52 per year beginning April 1, 1991, for the rent that KMS would have collected from GSA if GSA had not breached the November 20, 1990 express contract and the implied contract. 279,061.50 for three times the amount KMS spent ($93,020.50) to remodel the abandoned space, to attempt to obtain permits from the city of Buena Park, and to restore the building. KMS claims this amount as breach of contract damages. 6,778.07 for the amount KMS spent to market the space abandoned by GSA. KMS claims this amount as breach of contract damages. 21,844.86 for the expenses of foreclosure and bankruptcy. KMS claims this amount as breach of contract damages. Appeal File, Exhibit 11. In May 1993, after Mr. Story finished his repair work, KMS hired Mr. Warren Parchan to renovate part of the 9,999 square feet for a new tenant. Transcript at 50, 64, 116, 135, 138. Mr. Parchan testified at the hearing concerning the condition of the 9,999 square feet when he did his construction work. He stated that the photographs that Mr. Shimozono referred to in his testimony depicted the condition of the premises when he saw it. Transcript at 116-18. He also testified that the majority of the carpet was missing. Transcript at 120. Concerning the first two categories of damages requested in KMS's claim, we held in our April 19, 1995 decision that GSA did not breach the February 20, 1987 lease by leaving without providing notice, and that there was neither a November 20, 1989 express contract nor any implied contract between the parties. Concerning the final three categories of damages, we held that there was only one contract between the parties, the February 20, 1987 lease, and that KMS's claim identified only one breach of that contract. Specifically, KMS claimed that GSA breached the contract when GSA's workers performed their construction work in March 1991. KMS's claim stated that GSA refused to repair or restore the premises, and asked for its restoration costs, which were included in the $93,020.50. Our April 19, 1995 decision does not resolve the portion of the claim that requests damages for restoring the leased premises. KMS's claim does not explain what portion of its claimed $93,020.50 is attributable to restoration or what costs make up the $93,020.50. Attached to KMS's claim is Exhibit G, which contains a list of check numbers, dates, amounts, and payees, and which allegedly supports the amount requested by KMS. The amounts of the checks do not add up to $93,020.50. Appeal File, Exhibit 11. Mr. Shimozono testified that he prepared Exhibit G by looking at canceled checks. Transcript at 61. At the request of the Board, KMS provided GSA and the Board with an itemized list of the amounts that it claims to have spent to restore the leased premises. KMS lists numerous check numbers and amounts, totaling $105,663.84. August 4, 1995 Order on Proceedings; KMS's August 16, 1995 Response to Order. The checks listed in Exhibit G of the claim are nearly the same as the checks listed in KMS's August 16, 1995 response to the Board's order. Exhibit G lists five amounts (check numbers 2185, 2165, 2166, 2160, and 2128) that are not contained in the itemized list provided by KMS on August 16, 1995. Appeal File, Exhibit 11; KMS's August 16, 1995 Response to Order. There is no evidence that any of these five amounts is related to restoration of the premises due to the construction work performed by GSA's employees. Mr. Shimozono did not remember the purpose of one amount. Transcript at 77. Three amounts were for legal expenses. Transcript at 76, 78. According to Exhibit G of the claim, one amount was for bankruptcy-related expenses. Appeal File, Exhibit 11. Mr. Shimozono testified that the amount KMS spent to restore the property was reasonably necessary, and that the amount KMS is seeking represents actual, out-of-pocket expenses. Transcript at 53. Mr. Shimozono testified that he believed he incurred approximately $120,000 in restoration expenses, and that restoration was completed in 1994, after the space was renovated to meet the needs of new tenants. Transcript at 58, 64-65. Neither KMS's August 16, 1995 response to the Board's order nor Exhibit G of the claim contains evidence of $120,000 of expenses. No documentation was provided by KMS to support Mr. Shimozono's estimate. Both Exhibit G of the claim and KMS's August 16, 1995 submission to the Board show that $50,984.31 was spent before GSA's workers entered the premises. Appeal File, Exhibit 11; KMS's August 16, 1995 Response to Order. There is no explanation in the record of how it is possible that these expenses resulted from GSA's workers performing subsequent construction work. Both Exhibit G of the claim and KMS's August 16, 1995 submission show that an additional $38,891.06 was spent for items unrelated to restoring the premises due to the construction work performed by GSA's employees. This consists of amounts paid to pursue the conditional use permit and the parking permit[foot #] 1, to relocate tenants and to look for new tenants[foot #] 2, and for architectural services[foot #] 3, roofing work[foot #] 4, w i n d o w c l e a n i n g [ f o o t # ] 5 , landscaping[foot #] 6, an account receivable related to bankruptcy[foot #] 7, and keys[foot #] 8. The $38,891.06 also includes amounts whose purpose Mr. Shimozono either could not remember or did not link to the work done by GSA's employees, and an amount for which KMS is not claiming reimbursement[foot #] 9. Subtracting the amount spent before GSA's workers entered the premises ($50,984.31) and the amount spent for items unrelated to restoring the premises due to GSA's construction work ($38,891.06), from the total amount listed in KMS's August 16, 1995 submission ($105,663.84) leaves $15,788.47 of KMS's claim for restoration damages. This $15,788.47 is made up of $1,227.36 paid to Frazee, $7,349.58 paid to Harris, $5,911.53 to Story, and $1,300 to Howerton. These amounts are listed in Exhibit G of the claim and in KMS's August 16, 1995 submission as having been paid between March 20 and December 11, 1991. Appeal File, Exhibit 11; KMS's August 16, 1995 Submission. As stated earlier, sometime after GSA left, KMS hired Carl Story to make repairs to the building so that it was in condition ----------- FOOTNOTE BEGINS --------- [foot #] 1 Chicago Title ($300); King ($1,550); Lazar ($2,076.50); OCB ($64.36); AML&G ($1,360.02); IWA ($1,627.12); Chase ($105); Smith Public Affairs ($1,500); City of Buena Park ($1,695); Campaign Management, Inc. ($10,000); Foto Express ($11.70), and Desnoo ($1,000). Appeal File, Exhibits 8, 10, 11; Transcript at 77, 78, 80, 85, 86, 91. [foot #] 2 REM ($4,497); Libertowski ($1,839.25); J&L ($70); and Lee & Associates ($289.97). Appeal File, Exhibits 8, 10, 11; Transcript at 76, 77, 78, 90. [foot #] 3 JESAIA ($7,846.56). Appeal File, Exhibit 8. [foot #] 4 Tustin Roofing ($495). Transcript at 88. [foot #] 5 Dave's ($225). Transcript at 88. [foot #] 6 Jones ($447). Transcript at 79. [foot #] 7 SO ($94.79). Appeal File, Exhibit 11-G. [foot #] 8 Eastern Key ($117). Transcript at 78-79. [foot #] 9 Sunwest ($96), petty cash ($453.84), Magnum Air ($160), PDS ($35), USPO ($9.95), Heidle ($240), Luna ($135), and Story ($550). Transcript at 76, 78, 79, 81, 91. ----------- FOOTNOTE ENDS ----------- to be shown to prospective tenants. Transcript at 49-50. KMS tore out the carpet that GSA's workers cut, and bought new carpet to replace it. Transcript at 51. Mr. Shimozono testified that KMS paid Frazee for painting supplies, and Harris and Howerton for carpeting. Transcript at 77, 86, 91. There is no evidence of how the painting supplies were used. There is no evidence establishing whether the amounts paid to Harris and Howerton were for materials or labor, or whether these amounts were spent to replace the carpet that was cut by GSA. Checks were written to Harris and Howerton in April and June 1991. Appeal File, Exhibit 11. Mr. Shimozono testified that the replacement carpet was purchased "some time" after Mr. Story did his work. He could not recall when carpeting was purchased, because KMS "brought in tenants at different intervals." Transcript at 51. GSA conducted an audit of KMS's claim. Concerning KMS's restoration costs, the auditors determined that there were no invoices or other records showing the time spent or the materials used in performing this work. Appeal File, Exhibit 33 at 344, 369, 378. Discussion KMS's opening post-hearing brief incorporates by reference its pre-hearing brief, which requests compensation for lost rent, bankruptcy expenses, and unspecified expenses. In its opening post-hearing brief, KMS contends that it is entitled to recover an unspecified amount of lost rent. Our April 19, 1995 decision disposed of KMS's claims for lost rent, bankruptcy expenses, and other expenses. As we held in that decision, what remains before us for decision is "the portion of the claim that requests damages for restoring the leased premises." 95-2 BCA at 137,923. KMS contends that GSA's employees destroyed the leased space when they performed their construction work in March 1991, that this breached the lease, and that GSA is required to reimburse KMS for the amount it spent to restore the premises. In its opening post-hearing brief, KMS asserts that it is entitled to recover $93,020.50, which it describes as its "actual costs for the repair of destruction to the KMS premises." KMS's Opening Post-Hearing Brief at 7. GSA contends that it was not obligated to restore the leased premises; that KMS did not prove that GSA's actions caused the damage alleged by KMS; and that KMS did not prove that it is entitled to recover the amount it claims. Breach Although the lease permits GSA to make alterations to the premises and does not contain a clause requiring GSA to restore the premises to the condition that existed when the lease term began, every lease contains an implied obligation on the part of the tenant not to damage the property. Eaddy v. United States, 139 F. Supp. 49 (Ct. Cl. 1956). GSA's workers' actions in tearing down a wall, cutting carpeting, and disturbing electrical fixtures and ceiling tiles amounted to a breach of this obligation. Damage Although GSA's actions caused some damage to the 9,999 square feet leased by GSA, KMS did not establish that the extent of the damage was as great as it contends. Some of the problems with the ceiling tiles and the carpet were due to water damage and not due to the work performed by GSA. In addition, some work was performed by KMS and not by GSA. KMS represented that, by late January 1991, it had spent a considerable amount to upgrade the space. In late February 1991, KMS was readying space for use by GSA. By early March 1991, KMS had readied the premises for construction and construction was being done by Hamilton Contractors. By mid-March 1991, KMS had performed some construction work, including removing some ceiling tiles. It would have been surprising if KMS had not performed some work before GSA's workers arrived in mid-March 1991, because KMS clearly understood that it had to accomplish a great deal of work in order to have the offices ready to open by April 1, 1991. The evidence offered by KMS to establish the extent of the damage caused by GSA consisted of the testimony of Mr. Shimozono, Mr. Story, and Mr. Parchan. None of these witnesses testified that they saw the premises immediately before GSA began working, while GSA was working, or immediately after GSA finished working. Although the witnesses testified that the conditions shown in a set of photographs depicted the condition of the leased premises, we do not know when the witnesses saw the premises and we do not know when the photographs were taken. Mr. Shimozono, who believes that he took the photographs, was not sure of the date they were taken, and he gave conflicting testimony as to whether the photographs were taken when GSA took over the project or after GSA left the building. Both Mr. Story and Mr. Parchan testified that the photographs depicted the condition of the building when they saw it. This testimony is confusing because, before Mr. Parchan performed his renovation work, Mr. Story rebuilt the ceilings and walls, made the area ready for carpet, and repaired the wiring and lighting in order to make the building ready to show to prospective tenants. Mr. Shimozono testified that, before GSA's workers came to the premises, no ceiling tiles had been removed. We know that this is incorrect, because Hamilton Contractors removed ceiling tiles earlier as part of its work. The evidence offered by GSA concerning the extent of the damage it caused consisted of the testimony of Mr. Oliver, who saw the premises immediately before GSA performed its work, was at the site while the work progressed, and was the last GSA employee to leave the site. He explained that he and his co- workers tore down a door and a wall, cut the carpet where they intended to install floor track, lowered some light fixtures and moved aside adjacent ceiling tiles, and otherwise left the premises as they were when the GSA employees began their work. Records of overtime worked by Mr. Oliver and other GSA employees support Mr. Oliver's testimony concerning the amount of time GSA's workers spent at the site. Mr. Oliver never saw anyone from KMS at the building while he was there. No GSA electrician ever came to the site and no one from GSA worked on the air conditioning. GSA argues that it did not cause any damage to the leased space because the carpet was not usable before GSA began its work, and because KMS would have renovated the space for a new tenant, even if GSA had never performed any work. This argument is not particularly persuasive. If all of the carpet was worthless, it is unlikely that Hamilton Contractors would have taken the time to cover it with plastic before beginning work, and it is unlikely that GSA's workers would have cut the carpet instead of simply removing it. Even if KMS would have done some renovation work for new tenants, we do not know whether the wall that GSA removed would have been torn down or whether the lights and ceiling tiles would have been disturbed. The evidence offered by GSA as to the extent of the damage it caused is more persuasive than the evidence put forward by KMS. We conclude that the damage consisted of tearing down a door and a wall approximately ten feet long, cutting the carpet, and disturbing some lighting fixtures and ceiling tiles. Costs In its brief, KMS claims that it is entitled to recover $93,020.50, which is its actual cost of repairing the leased premises. We have no idea how KMS arrived at this figure.[foot #] 10 KMS's August 16, 1995 itemized list of amounts that it claims to have spent to restore the leased premises totals $105,663.84. Of this amount, KMS is not entitled to recover the $50,984.31 that was spent before GSA's workers entered the premises, because KMS has not explained how these costs were incurred in order to restore the damage caused later by GSA. Also, of the $105,663.84, KMS is not entitled to recover the $38,891.06 that was spent for items unrelated to restoration of the premises. The most KMS can recover is $15,788.47 ($105,663.84 - $50,984.31 - $38,891.06). Relying upon Missouri Baptist Hospital v. United States, 555 F.2d 290 (Ct. Cl. 1977), GSA argues that KMS is not entitled to any recovery because KMS did not establish that its restoration costs were less than the amount by which the fair market value of the premises was diminished due to GSA's actions. Missouri Baptist states the general rule that damages equal to the cost of ----------- FOOTNOTE BEGINS --------- [foot #] 10 Additionally, we know of no authority for awarding the treble damages KMS seeks. ----------- FOOTNOTE ENDS ----------- restoration or repair generally place a landlord in the position it would have occupied if the tenant had not breached the lease. However, a landlord cannot recover damages that exceed the amount by which the fair market value of the property was diminished by the breach. For example, if the fair market value of a property is diminished by $5,000 due to a tenant's breach and it would cost $20,000 to repair the property, the landlord's recovery cannot exceed $5,000. In Missouri Baptist, the court denied the landlord any recovery, because the landlord did not offer any proof of the amount by which the fair market value of the property was diminished. The court placed the burden upon the landlord to establish both the cost of repairs and the diminution in fair market value. Missouri Baptist does not bar KMS from recovering its damages. Generally, in a breach of lease case, a landlord's burden of proof is satisfied if it presents evidence of the cost of repair or restoration. If a tenant wishes to argue that the landlord's recovery should be limited by the diminution in fair market value, the tenant should come forward and introduce evidence in support of its argument. The burden will then shift to the landlord to introduce its own evidence concerning diminution in market value. 2 M. Friedman, Friedman on Leases 18.1 at 1095-96 (3d ed. 1990) (and cases cited at n. 89). In Missouri Baptist, the court placed great emphasis upon the fact that the tenant came forward with evidence concerning the diminution in fair market value, and the landlord did not rebut that evidence. We found no cases supporting the proposition that the landlord is required to come forward with evidence of diminution of value, in the absence of evidence being introduced by the tenant. We found several controlling cases in which the court limited a landlord's recovery to the amount by which the fair market value of the property had been diminished by the tenant's breach and, in each case, the tenant introduced evidence of the diminution in value. Dodge Street Building Corp. v. United States, 341 F.2d 641 (Ct. Cl. 1965); Spitzel v. United States, 146 Ct. Cl. 399 (1959); Realty Associates, Inc. v. United States, 138 F. Supp. 875 (Ct. Cl. 1956). Because GSA did not introduce any evidence concerning the amount by which the fair market value of KMS's property was diminished, KMS was not required to come forward with any such evidence. GSA argues that KMS's claim should be denied because it does not segregate costs of restoration from costs of renovating the space to meet the requirements of new tenants. The costs that make up the $15,788.47 which KMS might be entitled to recover were incurred in 1991. Mr. Parchan and Mr. Story began renovating the space in 1993. Thus, none of the $15,788.47 could consist of renovation costs. GSA argues that KMS should be denied any recovery because the amount it claims as restoration costs has changed frequently and there is no explanation as to how the different amounts can be reconciled. KMS's initial, uncertified claim estimated that it would cost $21,730 to restore the premises to a marketable condition. KMS's subsequent, certified claim requested $93,020.50 for the amount spent to remodel the abandoned space, to obtain permits, and to restore the building. Nothing submitted in support of the claim totaled $93,020.50, and nothing explained how much of this amount represented the costs of remodeling and obtaining permits, as opposed to restoration. Shortly before the hearing, at the request of the Board, KMS provided a list of checks totaling $105,663.84, and stated that these were its restoration expenses. Most of the checks that made up the $105,663.84 were included in a list of checks that was submitted in support of KMS's claim. At the hearing, Mr. Shimozono testified that he spent approximately $120,000 to restore the building. Shifting, mercurial claims can certainly make it difficult for a board to determine whether a contractor is entitled to recover. 301 Howard Street Associates v. General Services Administration, GSBCA 10971, 94-1 BCA 26,450; AGH Industries, Inc., ASBCA 27960, 89-2 BCA 21,637. KMS's certified claim was sufficiently confusing that the Board required KMS to submit an itemized list of the amounts it claimed, and KMS did so on August 16, 1995. The total of the amounts contained in the itemized list is nearly five times the estimated restoration cost requested in KMS's initial, uncertified claim, but is very nearly the same as the total of the amounts contained in a list that KMS submitted as part of its certified claim. The figure put forward by Mr. Shimozono at the hearing is only an estimate and is not that far from the total of the amounts contained in the itemized list. Unlike the boards in 301 Howard Street and AGH Industries, we are not faced with diverse, varied, and inconsistent claims which make it impossible for us to discern what KMS seeks to recover. GSA argues that KMS should be denied any recovery because there is no documentary evidence in support of KMS's claim that the amount it requests represents restoration costs. It is true that there is no documentary evidence to support the $15,788.47 which KMS might be entitled to recover. KMS has not shown us an invoice, a time sheet, a receipt, or anything else to establish what amounts, if any, were paid to Mr. Story, Howerton, Harris, or Frazee, or to establish what goods or services these individuals and companies provided to KMS. Although the record is completely lacking in documentary evidence, we do have testimony from Mr. Shimozono. Mr. Shimozono stated that the amounts he spent to restore the premises were necessary, that the damages KMS seeks are actual, out-of-pocket expenses, and that Exhibit G of the claim was prepared from canceled checks. Mr. Shimozono's testimony supports KMS's claim. Finally, GSA argues that there is no evidence that links the amounts requested by KMS to the damage done by GSA. We agree with GSA, in part. Of the amounts making up the $105,663.84 listed by KMS in its August 16, 1995 submission, KMS established that, at most, $15,788.47 is related to the damage done by GSA. As stated above, this consists of amounts paid to Frazee, Harris, Howerton, and Mr. Story. KMS has not established a connection between the damage done by GSA and the amount paid to Frazee for painting supplies ($1,227.36). Cutting the carpet, removing the wall, and disturbing the lighting fixtures and acoustical tile ceiling would not seem to have necessitated the purchase of over $1,000 of painting supplies, and KMS introduced no evidence to show what these supplies were, how they were used, or how they were related to the damage caused by GSA. In addition, KMS has not established a connection between the damage done by GSA and the amounts paid to Harris ($7,349.58) and Howerton ($1,300) for carpeting. Although KMS tore out the carpet that was cut by GSA and although KMS paid Harris and Howerton for carpeting, KMS did not establish that Harris and Howerton replaced the carpet that was damaged by GSA. There is no evidence to show that Harris and Howerton provided any goods or services after GSA performed its construction work, or to show where their materials or labor were used. The evidence suggests that KMS did not purchase replacement carpet from Harris and Howerton. Mr. Shimozono seemed to recall that KMS purchased replacement carpet for new tenants, but checks were written to Harris and Howerton in April and June 1991, soon after GSA's workers left the premises, and renovations for new tenants were done in 1993 and 1994. The evidence introduced by KMS does not tie the payments made to Harris and Howerton to the damage done by GSA. There is a connection, however, between the damage done by GSA and the $5,911.53 paid to Mr. Story. According to the testimony of Mr. Shimozono and Mr. Story, Mr. Story rebuilt the ceilings, repaired the lighting, and made the area ready for carpet. Of the amount requested by KMS, $5,911.53 is supported by the testimony of Mr. Shimozono and Mr. Story. This is the amount which KMS has established that it is entitled to recover. Decision The appeal is GRANTED IN PART. KMS is entitled to recover $5,911.53 plus interest at the rate set forth in 41 U.S.C. 612 from January 19, 1993, until paid. ______________________________ MARTHA H. DeGRAFF Board Judge We concur: ______________________________ ______________________________ STEPHEN M. DANIELS DONALD W. DEVINE Board Judge Board Judge