dissenting.
In the first appearance of this case, the main issue on appeal was whether plaintiff Eastgate’s measure of damages for anticipatory breach of a lease for shopping center space should include lost revenues from other tenants in the shopping center. See Piggly Wiggly Southern v. Eastgate Assoc., 195 Ga. App. 10 (392 SE2d 337) (1990). We properly concluded that the damages should not include an award for losses from other tenants. See Piggly Wiggly Southern v. Heard, 261 Ga. 503 (405 SE2d 478) (1991). In arriving at this conclusion, however, I now believe this court became lost in a legal thicket and went on to rule erroneously that the damages should be measured by “ ‘the excess of the rent reserved under the lease agreement over the reasonable rental value of the premises at the time of the breach. . . .’” 195 Ga. App. at 12 (quoting Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 327 A2d 282, 288 (Md. 1974)). I agree with the majority opinion that the measure of damages which would best place the non-breaching party in the same position it would have been in had the lease not been breached is the amount Eastgate would have earned in rent pursuant to the lease minus the amount Eastgate saved as a result of the breach by not having to build or maintain the leased premises. See Parker v. King, 68 Ga. *877App. 672 (23 SE2d 575) (1942); see also Tel-Ex Plaza v. Hardees Restaurants, 255 NW2d 794 (Mich. App. 1977).
I also agree with the majority opinion that however erroneous it may have been, the law of the case rule prevents the original opinion from being modified; right or wrong, on remittitur, the trial court was required to apply the rule announced by this court. I disagree, however, that once the case was remitted and Eastgate again moved for summary judgment the trial court improperly modified or disregarded our earlier opinion. In my opinion, the trial court merely applied the rule set forth in our earlier opinion according to the only interpretation which makes sense.
After remittitur to the trial court, Eastgate again moved for partial summary judgment and, in support of the motion, submitted the testimony of an expert witness that the value of the undeveloped tract of land on which the leased premises was to have been constructed, as of the date of the breach, was zero. The majority agrees with Eastgate’s argument that the reasonable rental value of the premises at the time of the breach should be the value of the undeveloped land. Such an interpretation of this court’s initial opinion would yield an absurd result. The term “premises” in our phrase “reasonable rental value of the premises at the time of the breach” refers to the premises contemplated in the lease, i.e., 38,000 square feet of finished retail space which Eastgate promised to build and Piggly Wiggly promised to lease. It would be illogical to interpret “premises” as the undeveloped land owned by Eastgate since that is by no means the subject of Piggly Wiggly’s lease. The rent reserved under the lease was for finished retail space and the damages for breach of the agreement, pursuant to the only reasonable application of our previous holding, must be the difference between this sum and the reasonable rental value, as of the date of the breach, of that same space contemplated under the lease.
According to the majority, the trial court calculated damages as if the building had already been completed. I do not view the trial court’s order this way. It merely interpreted the leased premises to be that which was actually leased: not undeveloped land, but land on which the owner promised to build a retail building. When it attempted to apply the rule of our previous opinion, the trial court correctly calculated damages by comparing the rent agreed upon in the lease to the sum the owner could have negotiated on the date of the breach for the same promise to build. No evidence on this sum was presented on motion for summary judgment so the trial court correctly denied the motion and declared that future litigation of the issue of damages should be based on such evidence.
Contrary to Eastgate’s argument, by using the phrase “at the time of the breach,” this court in its earlier opinion did not require *878the damages in this case to be calculated by comparing the rental value of retail space which was to be built on the land to the rental value of the undeveloped land. Instead, it meant for the trial court to compare the sum Piggly Wiggly agreed to pay under the lease to the sum Eastgate could have obtained, as of the date of the breach, from another lessee for the same lease. “[A] building conforming to the description of the leased premises is necessarily contemplated.” Arthur Treacher’s &c. v. Chillum Terrace &c. Partnership, 347 A2d 568, 571 (Md. App. 1975) (in which an issue similar to the one now before us arose on the remand to the trial court of the Maryland case cited above). Compare Williams Wagon Works v. Gunn, 14 Ga. App. 158 (80 SE 668) (1913) (where the lessor breached an agreement to construct a building and lease it to the lessee, the measure of the lessee’s damages was the difference between the rental price agreed upon and the actual rental value of the property had the building been erected). This interpretation is correctly reflected in the trial court’s order.
Decided July 16, 1991 Reconsideration denied July 31, 1991 Hurt, Richardson, Garner, Todd & Cadenhead, Harold N. Hill, Jr., James D. Comerford, Norman J. Radow, for appellant. Paul, Hastings, Janofsky & Walker, John G. Parker, Ronald T. Coleman, Jr., for appellee.I am authorized to state that Chief Judge Sognier, Presiding Judge Banke and Judge Cooper join in this dissent.