Eastgate Associates, Ltd. v. Piggly Wiggly Southern, Inc.

410 S.E.2d 129, 200 Ga. App. 872, 1991 Ga. App. LEXIS 1162
CourtCourt of Appeals of Georgia
DecidedJuly 16, 1991
DocketA91A0683
StatusPublished
Cited by15 cases

This text of 410 S.E.2d 129 (Eastgate Associates, Ltd. v. Piggly Wiggly Southern, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eastgate Associates, Ltd. v. Piggly Wiggly Southern, Inc., 410 S.E.2d 129, 200 Ga. App. 872, 1991 Ga. App. LEXIS 1162 (Ga. Ct. App. 1991).

Opinions

Birdsong, Presiding Judge.

We granted this interlocutory appeal to consider the trial court’s treatment of our decision in Piggly Wiggly Southern v. Eastgate Assoc., 195 Ga. App. 10 (392 SE2d 337) (“Eastgate I”). The facts are set forth in that opinion and will not be restated here.

Eastgate contends the trial court erred by failing to apply the [873]*873holdings in the first decision. Held:

1. In Eastgate I we held “the proper measure of damages to be applied is the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach.” (Punctuation omitted; emphasis supplied.) Id. at 12. No motions for rehearing and no petitions for certiorari were filed.

Nevertheless, in subsequent proceedings in this case, the trial court found that using the reasonable rental value of the premises as it existed at the time of the breach in February 1987, i.e., unimproved land, would not be appropriate: “Thus, it is fair to say that the two opinions [Szabo Assoc. v. Peachtree-Piedmont Assoc., 141 Ga. App. 654 (234 SE2d 119) and Eastgate I] erroneously hold that the reasonable rental value of the unimproved land at the time of the breach is a factor to be considered for appraisal purposes.” (Emphasis supplied.) Therefore, the trial court modified its opinion and elected to measure the damages using the reasonable rental value of the premises as if the building had been completed as contemplated in the lease.

A trial court, however, regardless of its good intentions, cannot decide to disregard the opinions of this court. Art. VI, Sec. V, Par. III, Const. Ga., 1983; OCGA § 5-6-10; Atlanta Journal &c. v. Long, 259 Ga. 23, 24 (376 SE2d 865); Callahan v. Panfel, 195 Ga. App. 891, 892 (395 SE2d 80). Further, absent a change in the evidentiary posture, the rulings of this court are binding on the trial court in all subsequent proceedings in this case and may not be disregarded. OCGA § 9-11-60 (h); Jebco Ventures v. City of Smyrna, 259 Ga. 599, 601-602 (385 SE2d 397). “Whether [Eastgate I] is right or wrong, it is binding on the parties.” Braner v. Southern Trust Ins. Co., 255 Ga. 117, 122 (335 SE2d 547). “ ‘ “Moreover, the decision of the appellate court, and any direction awarded, shall be respected and in good faith carried into full effect by the court below.” ’ ” Palm Restaurant of Ga. v. Prakas, 192 Ga. App. 74, 76 (383 SE2d 584).

Additionally, we cannot adopt the “modified” measure of damages proposed by the trial court and the dissent because our prior ruling in this case is equally binding on this court even though we might now disagree with it. OCGA § 9-11-60 (h); Gober v. Hosp. Auth. of Gwinnett, 191 Ga. App. 498, 499 (382 SE2d 106); Redmond v. Blau, 153 Ga. App. 395, 396 (265 SE2d 329). Therefore, we cannot adopt the dissent’s revision of the measure of damages established in Eastgate I by redefining “premises” because doing so changes the measure of damages established in Eastgate I.

In Eastgate I, the initial consideration was the proper measure of damages, and this court adopted the time of the breach as the point at which to measure the damages. In so doing, two things were fixed: the time in which to measure the market for renting premises and the [874]*874condition of the premises. Further, in addition to selecting the time of the breach as the point at which to measure the damages, this court also specifically rejected Piggly Wiggly’s contention that the time of performance should be used in measuring the damages. Implicit in such a decision is the rejection of using the condition of the building as if it had been completed as contemplated in the lease because that would be the condition of the premises at the time of performance of the lease. Indeed, in accordance with paragraph 2 (b) of the lease, the lease would not commence until after “the leased building is completed . . . and ready for occupancy.” Thus, giving Eastgate I the interpretation the trial court and the dissent now find appropriate completely changes the holding in Eastgate I.

While using the measure of damages specified in Eastgate I might have unintended benefits for Eastgate, the non-breaching party, using the measure of damages the trial court and the dissent now propose would give significant, unwarranted benefits to Piggly Wiggly, the breaching party. Because in most cases a comparable sale or lease is the most persuasive evidence of fair market value, it is hard to foresee circumstances in which the lease price stated in a lease for the identical property would not be considered the reasonable rental value of the premises. Therefore, using this measure of damages, the non-breaching party would recover no damages — which, of course, is the position taken by Piggly Wiggly’s expert in this case. Additionally, the record contains evidence that Piggly Wiggly’s breach caused the financing for the project to be withdrawn by the lender and Eastgate has been unable to find another anchor tenant with which to gain financing. Thus, having deprived Eastgate of its ability to complete the building, Piggly Wiggly would nevertheless receive the benefit of measuring the damages by assuming the building was completed. Further, the record also contains evidence showing that the market for supermarkets was more favorable at the time of the breach than at the time of performance because the market has become saturated. Therefore, the effect of this new measure of damages would be to unjustifiably inflate the reasonable rental value of the premises. Further, we must note the measure of damages established in Eastgate I was not proposed by Eastgate, but was urged by Piggly Wiggly, except that Piggly Wiggly asserted that the time of performance should have been used. Thus, this is not a case in which Eastgate has sought and won an unfair advantage, but one in which the other party, having successfully urged one theory, later becomes dissatisfied with the result.

We also have reservations about the measure of damages established in Eastgate I because we are concerned it does not accurately measure the damages in cases such as this. The cardinal rule in assessing the damages for a breach of contract is to attempt to place the [875]*875non-breaching party, insofar as possible, in the same position it would have been if the contract had not been breached. OCGA § 13-6-1. Georgia Power &c. Co. v. Fruit Growers &c. Co., 55 Ga. App. 520 (190 SE 669). Neither the measure of damages established in Eastgate I nor those now proposed by the trial court and the dissent would accomplish that result. Instead, although Eastgate has suffered real damages, no damages may be awarded. Yet, if there had been no breach, Eastgate would have constructed the building, Piggly Wiggly would have paid its rent for the term of the lease, and Eastgate would have earned its profit on the lease, i.e., what it received from Piggly Wiggly less the amounts expended to construct the building and operation and maintenance expenses.

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Eastgate Associates, Ltd. v. Piggly Wiggly Southern, Inc.
410 S.E.2d 129 (Court of Appeals of Georgia, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
410 S.E.2d 129, 200 Ga. App. 872, 1991 Ga. App. LEXIS 1162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastgate-associates-ltd-v-piggly-wiggly-southern-inc-gactapp-1991.