Market Place Shopping Center, L.P. v. Basic Business Alternatives, Inc.

489 S.E.2d 162, 227 Ga. App. 419, 1997 Ga. App. LEXIS 939
CourtCourt of Appeals of Georgia
DecidedJuly 16, 1997
DocketA97A0486
StatusPublished
Cited by11 cases

This text of 489 S.E.2d 162 (Market Place Shopping Center, L.P. v. Basic Business Alternatives, 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
Market Place Shopping Center, L.P. v. Basic Business Alternatives, Inc., 489 S.E.2d 162, 227 Ga. App. 419, 1997 Ga. App. LEXIS 939 (Ga. Ct. App. 1997).

Opinions

Smith, Judge.

This is the second appearance of these parties before this Court. In Market Place Shopping Center v. Basic Business Alternatives, 213 Ga. App. 722 (445 SE2d 824) (1994), we affirmed the trial court’s entry of judgment in favor of Basic Business Alternatives (BBA) based on Market Place’s breach of a lease covenant not to rent space to any other competing business. We reversed the award of damages, however, concluding that the trial court applied an incorrect measure of damages. Id. at 723 (3). Following another bench trial, on the issue of damages, the trial court entered judgment in favor of BBA in the amount of $52,754.33. This appeal by Market Place ensued. Although we disagree with Market Place’s contention that the trial court did not apply the proper measure of damages, we nevertheless reverse because we conclude that the trial court’s award was based on speculative evidence.

1. After BBA concluded presentation of its evidence, Market [420]*420Place moved for involuntary dismissal pursuant to OCGA § 9-11-41 (b), arguing that BBA presented evidence only of lost profits as the measure of damages. The trial court denied the motion, and Market Place then submitted its own evidence. Market Place raises the denial of its motion as error.

“The measure of damages recoverable for a lessor’s breach of [a] covenant not to rent other stipulated premises for a competing business is the difference in value between the plaintiffs’ leasehold with the covenant against competition unbroken and the same leasehold with the covenant broken. The value of said leasehold is not controlled by the stipulated rental therefor, nor the profits which the tenant could have realized from the operation of his business without the adjacent competing business. However, allegations and evidence of loss of profits are material to show the damage sustained by the lessee, in accordance with the rule herein stated. [Cits.]” Carusos v. Briarcliff, Inc., 76 Ga. App. 346, 351-352 (2) (45 SE2d 802) (1947). See also Market Place Shopping Center, supra at 723 (3); David Enterprises, Inc. v. Kingston Atlanta Partners, 211 Ga. App. 108, 110-111 (2) (438 SE2d 90) (1993). While evidence of lost profits is admissible, Carusos, supra at 352, evidence of lost profits alone is not sufficient to enable the trier of fact to determine damages. One seeking to recover for breach of a covenant not to rent premises to a competing business “cannot . . . recover for loss of profits and the value of the good-will of his business as such, but evidence as to these may be introduced to throw light on the value of his leasehold estate.” Id. Although lost profits may be an element of damages, “it is not the direct measure of damages” of a claim for a covenant such as the one at issue here. David Enterprises, supra at 111.

If we relied entirely on evidence submitted by BBA with respect to the value of the leasehold with the covenant unbroken, we might be constrained to agree with Market Place that the trial court should have granted its motion for involuntary dismissal. The only evidence presented by BBA concerning the leasehold value with the covenant unbroken was derived from anticipated lost profits allegedly resulting from Market Place’s breach. Such evidence alone was insufficient to permit the trial court to determine the diminution of the leasehold value. See David Enterprises, supra at 111.

But BBA’s expert did not provide the only testimony concerning the damages suffered by BBA. Market Place’s expert, a real estate appraiser, testified concerning damages as well. He estimated the difference in value between BBA’s leasehold with the covenant against competition unbroken and the covenant broken to be $4,600. Although this witness also testified that he did not arrive at a specific value for BBA’s leasehold estate with the covenant unbroken or a value for the lease with the covenant broken, the trial court was [421]*421authorized, as trier of fact, to believe portions of his testimony and disbelieve others. Brunswick Mfg. Co. v. Sizemore, 183 Ga. App. 482, 484 (359 SE2d 180) (1987). This expert explained his method of determining this measure of the difference in these valuations. He examined comparable properties and appraisal publications to find other similar competitors in the area. He also compared the lease of BBA’s competitor to that of BBA. He found the leases to be similar in most respects, including size of leased space, term, type of business, proximity to one another, and commencement date. He found the rents to be different, however, in the amount of “$.50 per square foot per year, triple net.” In addition, the competitor’s lease did not contain a non-compete covenant. The expert analogized the competitor’s lease, without a covenant, to one in which the covenant had been broken. He then reached his $4,600 value by calculating the rental rate per square foot of BBA’s business, with a lease containing a restrictive covenant, and subtracting from that value the rental rate per square foot of the competitor’s lease. Consequently, proof of lost leasehold value other than anticipated lost profits was submitted, albeit from Market Place’s own expert.

The trial court was entitled to rely upon all the evidence presented in reaching its conclusion concerning damages. In a bench trial, when the defendant moves for dismissal of the action after the close of the plaintiff’s case upon the ground that the plaintiff has shown no right to relief, “[t]he court as trier of the facts may then determine the facts and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence.” OCGA § 9-11-41 (b). The trial court neither granted the motion nor deferred judgment. But given that the statute does not provide for denial of such a motion and that the trial court went on to hear evidence from the defendant in this case, we construe the trial court’s “denial” of the motion as a deferral of judgment. “[I]n the absence of evidence in the record to the contrary, we must presume the trial court acted correctly. [Cit.]” Riberglass, Inc. v. ECO Chemical Specialties, 194 Ga. App. 417, 419 (1) (a) (390 SE2d 616) (1990).

2. Although we do not agree with Market Place that the trial court applied an erroneous measure of damages, we must reverse on another ground. As argued by Market Place, BBA’s proof of damages was completely speculative and conjectural and therefore could not provide a proper basis for valuing the leasehold.

In general, lost profits are not recoverable as contract damages because of their speculative, remote, and uncertain nature. Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149. Ga. App. 5, 10 (253 SE2d 392) (1979). See also Re/Max of Ga. v. Real Estate Group on Peachtree, 201 Ga. App. 787, 789 (2) (412 SE2d 543) (1991). As with most rules, though, exceptions have been identified. For example, it [422]*422appears that the general rule is somewhat modified with respect to recovery of lost profits arising out of the breach of a leasehold covenant such as that here. Although lost profits alone may not be used to establish the value of a leasehold with the covenant unbroken, as discussed in Division 1, such evidence is admissible “to throw light on the value of [a] leasehold estate.” Carusos, supra at 352.

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Market Place Shopping Center, L.P. v. Basic Business Alternatives, Inc.
489 S.E.2d 162 (Court of Appeals of Georgia, 1997)

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Bluebook (online)
489 S.E.2d 162, 227 Ga. App. 419, 1997 Ga. App. LEXIS 939, Counsel Stack Legal Research, https://law.counselstack.com/opinion/market-place-shopping-center-lp-v-basic-business-alternatives-inc-gactapp-1997.