Interstate Development Services of Lake Park, Georgia, Inc. v. Patel , 218 Ga. App. 898 ( 1995 )

463 S.E.2d 516 (1995) 218 Ga. App. 898

INTERSTATE DEVELOPMENT SERVICES OF LAKE PARK, GEORGIA, INC.
v.
PATEL.

No. A95A1042.

Court of Appeals of Georgia.

October 20, 1995. Reconsideration Denied November 3, 1995. Certiorari Denied February 2, 1996.

W. Orson Woodall, William A. Turner, Jr., Valdosta, for appellant.

Bennett, Wisenbaker & Bennett, Michael S. Bennett, Sr., Michael S. Bennett, Jr., Valdosta, for appellee.

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. NICO Indus., 197 Ga.App. 411, 414(2), 398 S.E.2d 440 (1990); Stern's Gallery, etc. v. Corporate Prop. Investors, 176 Ga.App. 586, 592(3), 337 S.E.2d 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 S.E.2d 112 (1992).

Patel's reliance on Crosby v. Spencer, 207 Ga.App. 487, 488(1), 428 S.E.2d 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 S.E.2d 826 (1988).

Judgment reversed.

BIRDSONG, P.J., and SMITH, J., concur.