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Brief Fact Summary.
Evergreen appealed a trial court judgment that refused him to introduced expert witness testimony regarding lost profits for a business that had not yet begun to operate.
Synopsis of Rule of Law.
A business that has not yet begun to operate cannot recover lost profits.
The question of whether there has been substantial compliance and whether a deviation from contract requirements is wilful or justified, is ordinarily a question for the trier of the facts.
View Full Point of Law
Milstead entered into a contract to clear a piece of land for Evergreen Amusement Corp. (Evergreen) in order to build in a drive-in movie theater. Milstead was delayed in his work causing the movie theater to open two months late. Milstead sued for the full contract price of his services and Evergreen counterclaimed for lost profits due to the delay. The trial court granted judgment in favor of Milstead.
Issue.
Whether a business that has not yet begun to operate can recover lost profits?
Held.
No. The judgment of the trial court is affirmed. Lost profits are available where lost profits can be calculated with reasonable certainty.
Discussion.
Lost profits are sufficiently calculated for business that have been operating for a specified period of time, however lost profits are too speculative for business that have not yet begun to operate.