Interstate Development Services of Lake Park, Georgia, Inc. v. Patel

Johnson, Judge. Interstate Development Services of Lake Park, Georgia, Inc. (IDS), sued one of its founding partners and shareholders, Vijay Patel, for breach of a promissory note and breach of an agreement to make certain payments to IDS. Patel counterclaimed for, among other things, lost profits from IDS’s failure to erect billboard advertising on its land. The case went to trial before a jury, which awarded IDS $232,382 on its claims and also awarded Patel $232,382 on his lost profits counterclaim. The trial court entered final judgment on the jury verdict. IDS appeals. IDS correctly asserts that there is no evidence supporting the verdict and judgment on Patel’s lost profits counterclaim. A business owner may recover lost profits only if the business has a proven track record of profitability. The jury is not permitted to speculate as to what the allegedly lost profits might have been. Empire Shoe Co. v. *899 NICO Indus., 197 Ga. App. 411, 414 (2) (398 SE2d 440) (1990); Stern’s Gallery &c. v. Corporate Prop. Investors, 176 Ga. App. 586, 592 (3) (337 SE2d 29) (1985). The evidence in the present case shows that IDS had no history of profits and had actually lost money for the few years it had been in existence prior to the trial. “Where, as here, the evidence shows the claimant was a new business with no history of profits and, in fact, was operating at a loss, the loss of prospective profits ... is too remote and speculative to support a recovery of damages. [Cit.]” Springwell Dispensers v. Hall China Co., 204 Ga. App. 245, 246 (419 SE2d 112) (1992). Decided October 20, 1995 Reconsideration denied November 3, 1995 W. Orson Woodall, William A. Turner, Jr., for appellant. Bennett, Wisenbaker & Bennett, Michael S. Bennett, Sr., Michael S. Bennett, Jr., for appellee. Patel’s reliance on Crosby v. Spencer, 207 Ga. App. 487, 488 (1) (428 SE2d 607) (1993), is misplaced because unlike the claimant in that case, Patel did not present any evidence of the exact cause and amount of his alleged lost profits. Because IDS had no track record of profits, the jury’s award of lost profits to Patel was entirely speculative and must be reversed. See Palm Restaurant of Ga. v. Prakas, 186 Ga. App. 223, 226-227 (5) (366 SE2d 826) (1988). Judgment reversed. Birdsong, P. J., and Smith, J., concur.