Golden Pantry Food Stores, Inc., appeals the trial court’s judgment, entered on a jury verdict, in favor of Lay Brothers, Inc., for $43,520. This appeal arises from actions following the expiration of a lease between Golden Pantry, as lessee, and Harold and Edwina Lay, as lessors. Lay Brothers, Inc., asserts that, through an assignment, it is the successor in interest to Harold and Edwina Lay and is thus authorized to bring this action. Lay Brothers and Golden Pantry are competitors in the business of convenience stores.
The Lays leased the premises to Golden Pantry to operate a convenience store for ten years, plus a five year extension. At the end of that period Golden Pantry was to vacate the premises and remove its trade fixtures. After this was done, inspection of the premises under current environmental rules revealed some fuel contamination on the site and damage to the premises.
After the term of the lease, Lay Brothers acquired the premises and began preparations to operate its own gasoline station and convenience store on the site. Even though Golden Pantry’s lease ended in October 1998 and Lay Brothers wanted to take possession on November 1, 1998, Lay Brothers could not start operation of the convenience store until August 1999.
*646 Because Golden Pantry allegedly did not surrender the premises on time and in proper condition, Lay Brothers filed this action contending that Golden Pantry (1) failed to surrender the premises within a reasonable time after the termination of the lease, (2) removed improvements that should have remained on the premises, (3) failed to repair damage to the premises caused by its removal of trade fixtures, (4) failed to turn over the premises in as good a condition as when the premises was leased, and (5) thus breached the lease. Lay Brothers also contended that it was entitled to an award of attorney fees and expenses of litigation under OCGA § 13-6-11.
Golden Pantry answered the complaint denying liability and asserted among other defenses that Lay Brothers lacked standing to assert the claims raised in the lawsuit. After discovery, Golden Pantry moved for summary judgment, but the motion was denied. Subsequently, the case proceeded to trial, and the jury returned a general verdict in favor of Lay Brothers in the amount of $43,520. After entry of judgment, this appeal followed.
Before trial, Golden Pantry filed two motions in limine. One motion sought to preclude Lay Brothers from introducing any evidence on its claims related to removing the canopy because as a matter of Georgia law the canopy was a trade fixture. In the other motion, Golden Pantry argued that Lay Brothers should be prohibited from introducing evidence on its damages claims because it was not entitled to recover for the canopy, it was not entitled to lost profits arising from the delayed opening, it was not entitled to recover for lost profits because it cannot show a history of profits as required by Georgia law, and it otherwise could not prove its damages.
In a pretrial hearing, the trial court denied the motion on whether the canopy was a trade fixture, saying that it was something a jury should decide. In response to the second motion in limine, Lay Brothers argued that its position was “that our damage is the same damage that the estate sustained. That’s what we’re entitled to prove. We’ll be limited to that. I mean I don’t know that that means the motion in limine — if he’s suggesting that we’re going to try to prove damages outside of what we were assigned, no, I don’t think we can do that.” Lay Brothers further argued, however, that because it was a “close family corporation in which the grandmother, Mrs. Lay, owned an interest, and the estate owned an interest, if they haven’t already distributed it, so I think you — when • — in a family business with a close corporation there is an identical interest in terms of damages. Ms. Lay owned Lay Brothers or a substantial portion of it.” Apparently adopting this reasoning, the trial court denied this motion also.
The case proceeded to trial and at the close of Lay Brothers’ case, Golden Pantry, incorporating the grounds urged in its motions for *647 summary judgment and in limine, moved for a directed verdict on several grounds: (a) Lay Brothers lacked standing to bring the action because the assignment was defective, (b) Lay Brothers had no entitlement to sue for lost profits, (c) the evidence to prove lost profits was insufficient, and (d) the evidence tending to show the other damages was based on mere speculation. The trial court denied the motion. At the close of all the evidence, Lay Brothers also moved for a directed verdict, and its motion was also denied. The case was submitted to the jury, and the jury returned the verdict in favor of Lay Brothers.
On appeal, Golden Pantry contends that the trial court erred by denying its motion for a directed verdict on: (a) the canopy’s removal, (b) Lay Brothers’ authority to claim lost profits, (c) the real party in interest objection, and (d) the sufficiency of the evidence to support Lay Brothers’ claim for damages. Golden Pantry also claims that the trial court erred by refusing to admit in evidence a letter from its counsel to Lay Brothers because the letter was not listed on the pretrial order. Because we agree that the trial court erred by denying Golden Pantry’s motion for directed verdict on lost profits damages, we must reverse the judgment and remand the case for a new trial.
1. An appellate court, when
determining whether the trial court erred by denying appellants’ motions for a directed verdict . . . must review and resolve the evidence and any doubt or ambiguity in favor of the verdict. A directed verdict... is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.
(Citations and punctuation omitted.)
Southern Store &c. Co. v. Maddox,
Although brought initially by Lay Brothers in its own right, after Golden Pantry challenged its standing to bring the action Lay Brothers obtained an assignment from Edwina Lay of her right to *648 bring this action. 1 In pertinent part, the assignment states:
I, EDWINA B. LAY, individually and as successor in interest to Harold E. Lay, deceased, have assigned and by these presents do assign to LAY BROTHERS, INC., any and all right and title which I have or may have to any claims, causes of action, chose in action, and/or damages, past, present, or future, arising out of that Lease Agreement entered into by and between Harold E. Lay and Edwina B. Lay and Golden Pantry Food Stores, Inc. on or about September 2, 1983, a true and accurate copy of which is attached hereto as Exhibit “A.” This assignment includes, without limitation, any and all claims and/or causes of action asserted in the pending lawsuit styled Lay Brothers, Inc. v. Golden Pantry Food Stores, Inc., Civil Action No. SU-00-CV-0912-J, Superior Court of Athens-Clarke County, Georgia.
It is a well-established principle of Georgia law that an assignee of a contract acquires its rights from the assignor, has no more rights under the contract than the assignor, and is subject to all the defenses that could have been raised against the assignor.
Pridgen v. Auto-Owners Ins. Co.,
Therefore, the real issue before us is what damages Edwina Lay was authorized to recover from Golden Pantry for its actions after the lease came to an end. 2 In actions for breach of contract, damages are given as compensation for the breach. OCGA § 13-6-1. Thus, the “[djamages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2.
Mr. and Mrs. Lay did not operate a convenience store on the premises; they leased the premises to Golden Pantry to operate a convenience store. Further, at the end of the lease, Mrs. Lay also did not operate a convenience store there, or attempt to do so. Instead, she transferred the premises to Lay Brothers.
*649 Consequently, the damages to which Mrs. Lay would be entitled are those due landlords when its tenants do not vacate the premises in such condition that the property can be leased to others in a timely manner. Lay Brothers argues that, through the assignment, it was entitled to seek damages for Golden Pantry’s breach of the obligation under the lease to timely deliver possession of the premises at the end of the lease, and we agree with that position.
Additionally, Lay Brothers was also entitled to recover for damages to the premises, and to recover those damages it was essential to prove with a reasonable degree of certainty the condition of the premises both at the inception and at the termination of the lease and the damage which should have been, but was not, repaired.
Jacobi v. Timmers Chevrolet, Inc.,
Lay Brothers relies upon
Accent Walls, Inc. v. Parker,
Further, although Lay Brothers argues that this was a closely held, family corporation, this does not alter the basic fact that a corporation is a separate entity, distinct and apart from its stockholders,
Exchange Bank of Macon v. Macon Constr. Co.,
Lay Brothers’ evidence on the lost profits was limited to introduction of profit and loss statements for the convenience store for 1999 and 2000. Therefore, this evidence was not sufficient to prove that Edwina Lay, as owner of the property, was entitled to those damages. Lay Brothers on one hand acknowledges that it is only entitled to recover from the assignment from Edwina Lay and not
*650
entitled to recover as a successor lessee, see
Baxley v. Davenport,
Lay Brothers also contends that the property was damaged by soil contamination from leaking tanks. “[Hjydrocarbon contamination constitutes nuisance and continuing trespass even after leaks have been fixed.”
Hudgins & Co. v. J & M Tank Lines,
In actions for nuisances, as in other actions for torts, the measure of damages is compensation to the plaintiff for the actual injury inflicted. Where the injury goes either to the market or rental value of the premises, the difference in the market or rental value before the nuisance existed and such value after the nuisance was created is the measure of damages.
Head v. Towaliga Falls Power Co.,
Here, any determination of damages is complicated by the fact that Mrs. Lay transferred the operation of the convenience store to Lay Brothers apparently without monetary compensation. Nevertheless, she was not entitled to recover lost profits from the convenience store.
2. As the record shows that the trial court did not consider the validity of the assignment within the proper context of contract interpretation, we decline to address the issue now as we are remanding this case to the trial court for further proceedings. If properly raised, the trial court should consider this issue at that time in accordance with our time-honored principles of contract construction. “Construction of a contract is a question of law for the court. Where any matter of fact is involved, the jury should find the fact.” OCGA § 13-2-1. Although whether a contract is ambiguous is a question of law for the court,
Collier v. State Farm Mut. Auto. Ins. Co.,
If again raised, the trial court should consider in the same manner Golden Pantry’s arguments regarding whether under the terms of the lease it was entitled to remove the canopy, and other contentions based on construction of the lease.
3. Golden Pantry’s argument that Lay Brothers is not the real party in interest to bring this action is based on the evidence that Edwina Lay jointly owned the property with her deceased husband and evidence showing that the estate still had owned an interest in the property after the assignment. For example, a deed was introduced at trial showing that Edwina Lay and the Harold E. Lay Testamentary Trust conveyed the premises to Lay Brothers on August 6, 2001. This raises the question whether all the parties who were affected by Golden Pantry’s actions were participating in the litigation. See OCGA § 9-11-17 (a). No evidence was presented showing that the estate’s interest in the property was conveyed to Mrs. Lay and Lay Brothers’ counsel indicated that the estate had an interest in the matter. “The real party in interest is ‘the person, who, by the substantive governing law, has the right sought to be enforced.’ Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d, § 1543
(1990).” Allianz Life Ins. Co. of N. A. v. Riedl,
4. In view of our reversal of the trial court’s judgment and remand for further proceedings, Golden Pantry’s other enumerations are moot.
Judgment reversed.
Notes
We recognize that Golden Pantry has contested the validity of the assignment, but for the reasons stated in Division 2 we decline to consider that issue in this appeal.
We also recognize that Golden Pantry has challenged whether the release from only Edwina Lay was sufficient to assign the lessors’ interest to Lay Brothers, but for reasons stated in Division 3, below, we also decline to address this issue until the trial court has properly considered whether all the real parties in interest are before the court.