Winn-Dixie Stores, Inc. v. Dolgencorp, LLC ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 12-14527; 12-14742; 12-14825
________________________
D.C. Docket Nos. 9:11-cv-80601-DMM, 9:11-cv-80638-DMM
WINN-DIXIE STORES, INC.,
WINN-DIXIE STORES LEASING, LLC, et al.,
Plaintiffs - Appellants,
versus
DOLGENCORP, LLC,
f.k.a. Dolgencorp, Inc,
a Kentucky corporation,
Defendant - Appellee.
____________________________________
D.C. Docket No. 9:11-cv-80638-DMM
WINN-DIXIE STORES, INC.,
WINN-DIXIE STORES LEASING, LLC, et al.,
Plaintiffs - Appellants
Cross Appellees,
versus
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DOLLAR TREE STORES, INC.,
a Virginia corporation,
Defendant - Appellee
Cross Appellant.
____________________________________
D.C. Docket No. 9:11-cv-80641-DMM
WINN-DIXIE STORES, INC.,
WINN-DIXIE STORES LEASING, LLC, et al.,
Plaintiffs - Appellants
Cross Appellees,
versus
BIG LOTS, INC.,
an Ohio corporation,
Defendant - Appellee
Cross Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(March 5, 2014)
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Before MARCUS and FAY, Circuit Judges, and HODGES, * District Judge.
MARCUS, Circuit Judge:
When a Winn-Dixie supermarket signs on to anchor a shopping center, its
lease often contains a restrictive covenant sharply limiting grocery sales by other
tenants. In this complex lawsuit, Winn-Dixie claimed that, since 2005, it suffered
more than $90 million in lost profits because Defendants Dollar General, Dollar
Tree, and Big Lots violated, and continue to violate, these restrictive covenants.
Trial involved ninety-seven of Defendants’ stores across five southeastern states.
The district court handled this complicated case with thought and skill.
For fifty-four stores, the district court reached the question of whether the
Defendants violated the terms of the restrictive covenants, whose standard
language for most stores limited the sale of “staple or fancy groceries” to a discrete
“sales area.” Applying general principles of Florida law, the district court
construed these terms narrowly, reading groceries as only food items and
measuring sales area only by shelving space. As a result, the court refused to order
injunctions for thirty-seven stores where it found no violation of the terms of the
covenants. As for the seventeen other stores, the court issued injunctive relief that
limited only the sale of food items measured by shelving space. Being Erie-bound
*
Honorable Wm. Terrell Hodges, United States District Judge for the Middle District of Florida,
sitting by designation.
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to apply state rules of decision in this diversity jurisdiction case, we must reverse
and remand as to the fifty-four stores. We do so for forty-one of these stores found
in Florida, compelled by an intermediate appellate decision from that state
interpreting a restrictive covenant materially identical to many of those at issue
here. See Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So. 2d
719 (Fla. 3d DCA 2002). As we read controlling Florida law, “groceries” broadly
includes food and “many household supplies (as soap, matches, paper napkins),”
and sales area “includes fixtures and their proportionate aisle space.” Id. at 722(emphasis added). Also, for eleven stores in Alabama and two found in Georgia,
we are required to reverse and remand for interpretation of the covenant terms in
accordance with the appropriate law of each of those states.
For the remaining forty-three stores, the district court denied all relief for a
variety of reasons, without deciding whether the Defendants had violated covenant
terms. Finding no error, we affirm the judgment of the district court as to these
forty-three stores. To begin with, the district court acted well within its
considerable discretion in excluding the testimony of Dr. Pacey, Winn-Dixie’s
expert on damages, based on twin findings that the expert opinion would not assist
the trier of fact and was not grounded in reliable methodology. As a result, the
court made no error in refusing to award compensatory damages as to any of the
stores. Nor did the court err in finding that the restrictive covenants were
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unenforceable under the laws of Louisiana and Mississippi, or in refusing to allow
Winn-Dixie to enforce a covenant in a grocery store lease created after a
Defendant’s lease had been signed. Moreover, the trial court made no error in
refusing to recognize collateral estoppel because this case involves different stores
with different leases signed at different times from the lease for the one store at
issue in the prior Florida decision. And the district court did not abuse its
discretion in denying punitive damages because a legitimate dispute about the
meaning of the grocery exclusives indicated that the Defendants did not
intentionally engage in misconduct or act in a grossly negligent manner.
The cross-appeals lodged by Big Lots and Dollar Tree lack merit. As the
district court concluded, Big Lots need not have signed the restrictive covenants to
be bound by them because section 542.335 of the Florida Statutes does not apply to
covenants running with the land. The district court also properly concluded that
Big Lots’ landlords were not indispensable parties under Federal Rule of Civil
Procedure 19(a)(1), and that Winn-Dixie was not required to make a pre-suit
demand for compliance upon Big Lots under Florida law. Finally, the district court
did not err in granting summary judgment against Dollar Tree’s statute of
limitations affirmative defense; in Florida, a continuing violation principle applies
because the Defendants’ stores engaged in ongoing grocery sales.
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Thus, we affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I.
Plaintiffs (“Winn-Dixie”) own or operate roughly 500 supermarkets or
grocery stores on leased property throughout Alabama, Florida, Georgia,
Louisiana, and Mississippi. Most of their stores are found in Florida. Defendants,
in turn, run discount general merchandise stores, some of which are colocated in
shopping centers featuring a Winn-Dixie supermarket as an anchor tenant.
Dolgencorp, LLC (“Dollar General”) is a Kentucky limited liability company with
over 9,600 stores in 36 states. Dollar Tree Stores, Inc. (“Dollar Tree”) is a Virginia
corporation that operates more than 4,400 stores in 48 states. Big Lots Stores, Inc.
(“Big Lots”) is an Ohio corporation that runs over 1,400 stores in 48 states.
Winn-Dixie’s commercial leases often include a “grocery exclusive”
provision that precludes landlords from renting to other tenants who operate
grocery stores in the same shopping center. Many of the leases specify that these
tenants may devote a limited “sales area” to certain restricted products, including
“staple or fancy groceries.” Winn-Dixie argued that these grocery exclusives bind
subsequent tenants as covenants running with the land. Based on reports of
estimated sales activity compiled by its investigators, Winn-Dixie concluded that a
number of colocated Dollar General, Dollar Tree, and Big Lots stores operate in
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violation of the restrictive covenants created by the grocery exclusives. Not
surprisingly, the parties vigorously dispute which products are restricted and how
the permissible sales space is measured.
On May 20, 2011, Winn-Dixie sued Dollar General in the United States
District Court for the Southern District of Florida. Two weeks later, Winn-Dixie
filed separate suits against Big Lots and Dollar Tree in the same court. Winn-
Dixie initially identified 136 stores in all as being in violation of the restrictive
covenants. Of these original claims, Winn-Dixie at trial pursued its rights as to
only ninety-seven stores: fifty-one Dollar General, 1 thirty-two Dollar Tree,2 and
1
The stores at issue in this case are identified by the corporate numbers of the colocated stores.
For example, Dollar General #246, colocated with Winn-Dixie #478, is signified as
“DG246/WD478.” The fifty-one Dollar General stores at issue are: DG246/WD478;
DG626/WD1537; DG770/WD1540; DG1026/WD1511; DG1056/WD489; DG1095/WD209;
DG1322/WD612; DG1333/WD151; DG1382/WD30; DG1389/WD710; DG1402/WD2260;
DG1413/WD631; DG1416/WD622; DG1420/WD611; DG1421/WD144; DG1451/WD723;
DG1453/WD662; DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268;
DG1524/WD566; DG1541/WD629; DG1649/WD2342; DG2363/WD411; DG2634/WD777;
DG2685/WD1572; DG2762/WD652; DG2965/WD428; DG2969/WD681; DG3013/WD713;
DG4008/WD553; DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4952/WD599;
DG4981/WD221; DG7268/WD123; DG7376/WD737; DG7457/WD167; DG7539/WD577;
DG7584/WD639; DG7824/WD1588; DG7883/WD305; DG8551/WD561; DG8665/WD579;
DG9149/WD750; DG9263/WD705; DG10357/WD1431; DG10484/WD654; DG11814/WD574.
2
DT153/WD463; DT332/WD2311; DT582/WD166; DT723/WD254; DT807/WD657;
DT892/WD2230; DT986/WD737; DT1135/WD116; DT1566/WD228; DT1805/WD705;
DT2117/WD353; DT2159/WD309; DT2160/WD443; DT2161/WD1555; DT2395/WD461;
DT2714/WD2205; DT2804/WD84; DT2838/WD412; DT2936/WD599; DT3382/WD514;
DT4133/WD456; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
DT4625/WD577; DT4637/WD471.
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fourteen Big Lots.3 The ninety-seven stores were located predominantly in Florida
(seventy-five stores), but also in Alabama (thirteen), Louisiana (six), Georgia
(two), and Mississippi (one). Winn-Dixie sought damages or, in the alternative,
injunctive relief. The Defendants in turn filed third-party complaints against a
number of shopping center landlords seeking indemnification, but those third-party
actions are not at issue in this appeal.
For ninety-one of the ninety-seven locations at issue, a standard grocery
exclusive in Winn-Dixie’s lease included the following critical terms:
Landlord further covenants and agrees not to permit or suffer any
property located within the shopping center to be used for or occupied
by any business dealing in or which shall keep in stock or sell for off-
premises consumption any staple or fancy groceries, meats, fish,
vegetables, fruits, bakery goods, dairy products or frozen foods
without written permission of the Tenant.
Winn-Dixie Stores, Inc. v. Big Lots Stores, Inc., 886 F. Supp. 2d 1326, 1336 (S.D.
Fla. 2012). Of these ninety-one standard grocery exclusives, seventy-eight contain
the following exception:
[E]xcept the sale of such items is not to exceed the lesser of 500
square feet of sales area or 10% of the square foot area of any
storeroom within the shopping center, as [an] incidental only to the
conduct of another business . . . shall not be deemed a violation
hereof.
3
BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
BL553/WD236; BL554/WD671; BL555/WD307; BL558/WD160; BL570/WD612;
BL1519/WD306; BL1628/WD348; BL1711/WD302; BL4258/WD254. [DE 622.]
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Id. (alterations in original). Of the remaining thirteen standard grocery exclusives,
five include similar language that allows up to 1,000 square feet of restricted
products; three allow up to 400 square feet; and five do not allow the sale of any
such items.
Winn-Dixie sought summary judgment against each of the Defendants,
which the district court granted in part and denied in part. The court found that the
grocery exclusives formed valid and enforceable covenants running with the land
under Florida law, but that genuine issues of material fact remained as to the
meaning of “groceries” and “sales area.” On February 1, 2012, the court
consolidated Winn-Dixie’s actions against Dollar General, Dollar Tree, and Big
Lots.
After many more motions were filed, the district court entered a pretrial
“Omnibus Order Concerning the Meaning of the Terms ‘Groceries’ and ‘Sales
Area.’” The court found that both the terms “staple or fancy groceries” and “sales
area” were ambiguous as used in the grocery exclusives. Ultimately, applying
Florida principles of real covenant interpretation, the court construed the
restrictions narrowly, determining that the parties intended “staple or fancy
groceries” to mean only food items, including nonalcoholic beverages, and “sales
area” to include only the footprint of the display unit, excluding aisle space. As a
result, the evidence presented at trial was premised on these definitions, and the
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court found covenant violations only when Defendants sold food items in excess of
the allowable shelving space.
Also before trial, the court excluded the testimony of Winn Dixie expert Dr.
Patricia Pacey, an economist who intended to opine as to damages. The
Defendants did not challenge Dr. Pacey’s qualifications, which included a Ph.D. in
economics and extensive statistical experience. Based on data drawn from almost
500 Winn-Dixie stores and over 12,000 potential nearby competitors, Dr. Pacey
employed a multiple regression model to determine whether a competitor selling
similar grocery products in proximity to a Winn-Dixie store has an effect on Winn-
Dixie sales. Because the Defendants’ stores generally do not sell meat, Dr. Pacey
calculated the effect of the Defendants’ presence on Winn-Dixie non-meat grocery
sales. After equalizing other factors, Dr. Pacey claimed that the presence of a Big
Lots, Dollar General, or Dollar Tree store within two-tenths of a mile of a Winn-
Dixie was correlated with a reduction in non-meat grocery sales of 7.7%, 6.7%,
and 5.0%, respectively. Dr. Pacey used these suppression numbers to calculate the
monetary damages allegedly sustained by each Winn-Dixie store. However, the
district court barred her testimony, finding its methodology was unreliable and that
it would not assist the trier of fact. The court concluded that her analysis failed to
reconcile that most of Defendants’ stores were permitted to sell a certain amount of
restricted products and that it did not establish causation between a covenant
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violation and decreased Winn-Dixie profits. The district court also took issue with
the methods underlying her regression analysis, which calculated damages from
2005 to 2008 based on recession-period sales data drawn from 2009 and 2010,
measured Winn-Dixie foot traffic by assuming that consumers purchase their
groceries and meat at the same store, imposed an arbitrary three-mile outer radius
to measure competition, alleged damages for items that the Defendants do not sell,
and had not been peer-reviewed.
The district court conducted a bench trial from May 14 until May 22, 2012.
On August 13, it issued detailed “Findings of Fact and Conclusions of Law.” The
court determined that the leases created enforceable restrictive covenants under the
laws of Florida, Georgia, and Alabama, but that the grocery exclusives could not
be enforced in Louisiana, under that state’s civil law, or in Mississippi, because
privity of estate was lacking. The district court refused to award any compensatory
damages, however, because the evidence of harm presented by Winn-Dixie was
“too general, vague, and speculative.” The court also denied punitive damages,
finding no “intentional misconduct” or “gross negligence” because “[t]he grocery
exclusives . . . are rife with ambiguities and the scope of their restrictions are
uncertain at best,” and because Winn-Dixie did not make a formal demand on
Defendants to comply prior to filing suit.
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Turning to Winn-Dixie’s request for injunctive relief, the district court
determined that, with Dr. Pacey’s testimony off the table, a remedy at law was
inadequate because of its “skepticism that Plaintiffs could ever provide sufficient
evidence to be entitled to an award of damages.” However, the court granted
injunctive relief only if a Defendant’s store violated a narrowly construed
restrictive covenant.
For a number of reasons, the district court found that injunctive relief was
unavailable at forty-three stores regardless of whether Defendants had violated the
terms of the grocery exclusives. Thirty-one stores had closed, making an
injunction unnecessary. 4 The court awarded no relief as to the six stores in
Louisiana5 and one in Mississippi,6 where the covenants were unenforceable. For
one store, Dollar General’s lease predated the restrictive covenant; thus, the court
determined that the subsequent restrictive covenant was not enforceable. 7 For four
4
BL570/WD612; DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30;
DG1389/WD710; DG1402/WD2260; DG1413/WD631; DG1421/WD144; DG1451/WD723;
DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
DG1649/WD2342; DG2363/WD411; DG2762/WD652; DG3013/WD713; DG4008/WD553;
DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221; DG7457/WD167;
DG7539/WD577; DG7584/WD639; DG7883/WD305; DG9149/WD750; DG10484/WD654;
DT1135/WD116.
5
DG626/WD1537; DG770/WD1540; DG2685/WD1572; DG7824/WD1588;
DG10357/WD1431; DT2161/WD1555.
6
DG1026/WD1511.
7
DG1420/WD611.
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stores with nonstandard covenants, the court concluded it could not craft a specific,
detailed injunction that satisfied the requirements found in Federal Rule of Civil
Procedure 65(d).8 In relevant part, Rule 65(d)(1) requires that “[e]very order
granting an injunction . . . must . . . (B) state its terms specifically; and (C) describe
in reasonable detail . . . the act or acts restrained or required.” Fed. R. Civ. P.
65(d)(1).
At the remaining fifty-four stores, the district court reached the question of
whether the Defendants had violated the narrowly construed covenants. The court
checked for violations by looking to reports from Winn-Dixie investigators that
estimated grocery sales areas for the stores at issue -- again, counting only food
items and shelving space. For thirty-seven stores, these reports showed no
violation and the court entered no injunction. 9 For six stores, the investigator
reports indicated that restrictive covenants were violated by less than fifty square
8
BL554/WD671; DG7268/WD123; DG9263/WD705; DT 1805/WD705. For DG9263/WD705,
the district court also concluded, alternatively, that it could not enforce a grocery exclusive
contained in a nonstandard cross-easement.
9
BL505/WD506; DG246/WD478; DG1056/WD489; DG1416/WD622; DG1541/WD629;
DG2965/WD428; DG2969/WD681; DG4952/WD599; DG7376/WD737; DG11814/WD574;
DT153/WD463; DT332/WD2311; DT582/WD166; DT807/WD657; DT892/WD2230;
DT986/WD737; DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2160/WD443;
DT2395/WD461; DT2714/WD2205; DT2804/WD84; DT2838/WD412; DT2936/WD599;
DT3382/WD514; DT4133/WD456; DT4181/WD678; DT4199/WD255; DT4230/WD656;
DT4266/WD501; DT4339/WD632; DT4497/WD378; DT4511/WD647; DT4550/WD658;
DT4625/WD577; DT4637/WD471.
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feet; the court ordered Defendants to ensure compliance within thirty days. 10 For
seven stores in violation by more than fifty square feet, the district court ordered
Defendants to comply with the covenants. 11 In addition, the district court directed
three stores to comply with restrictive covenants that did not permit any sale of
groceries.12 Finally, for one store, “gross inaccuracies” in the investigator report
prevented Winn-Dixie from having a clear right to injunctive relief, but the court
ordered Dollar Tree to measure the sales area and ensure compliance at that
location within thirty days. 13
In total, then, of the ninety-seven stores, the court found no violation of the
grocery exclusives at thirty-seven stores; ordered some injunctive relief based on a
narrow interpretation of “groceries” and “sales area” at seventeen; and granted no
relief for an array of other reasons as to forty-three. The district court rejected
Defendants’ affirmative defenses. After Winn-Dixie appealed, Big Lots and
Dollar Tree filed separate cross-appeals. On September 10, 2012, Dollar General,
10
BL512/WD2210; BL530/WD654; BL555/WD307; BL558/WD160; DG8551/WD561;
DG8665/WD579.
11
BL550/WD609; BL553/WD236; BL1519/WD306; BL1628/WD348; BL1711/WD302;
DG1453/WD662; DG2634/WD777.
12
BL525/WD698; BL4258/WD254; DT723/WD254.
13
DT4365/WD236.
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Big Lots, and Dollar Tree certified to the district court that all stores identified as
having been in violation by the order were in compliance with the injunction.
II.
A.
After we inquired of the parties about our jurisdiction, the district court
entered a second amended final judgment. That order certified the judgment as
final pursuant to Rule 54(b). See Nat’l Ass’n of Bds. of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Ga., 633 F.3d 1297, 1306 (11th Cir. 2011) (“[A]
subsequent Rule 54(b) certification cures a premature notice of appeal from a non-
final order dismissing claims or parties.”). It also addressed concerns about
whether diversity jurisdiction had been properly pled. See 28 U.S.C. § 1653(“Defective allegations of jurisdiction may be amended, upon terms, in the trial or
appellate courts.”); Mallory & Evans Contractors & Eng’rs, LLC v. Tuskegee
Univ., 663 F.3d 1304, 1305 (11th Cir. 2011) (per curiam). Therefore, appellate
and subject matter jurisdiction are proper. See 28 U.S.C. § 1291; id. § 1332.
B.
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), commands that we
apply the substantive law of Florida, the forum state, in this diversity action filed in
the Southern District of Florida. See Nebula Glass Int’l, Inc. v. Reichold, Inc., 454
F.3d 1203, 1212 (11th Cir. 2006). Thus, for the stores located in Florida, we
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interpret and enforce the restrictive covenants according to Florida law. As for the
stores outside of Florida, we look to Florida’s choice of law rules. See Mazzoni
Farms, Inc. v. E.I. Dupont De Nemours & Co., 166 F.3d 1162, 1164 (11th Cir.
1999) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). In
interpreting Florida law, we look first for case precedent from the Florida Supreme
Court. Where we find none, we are “bound to adhere to decisions of the state’s
intermediate appellate courts absent some persuasive indication that the state’s
highest court would decide the issue otherwise.” Provau v. State Farm Mut. Auto.
Ins. Co., 772 F.2d 817, 820 (11th Cir. 1985) (per curiam).
Winn-Dixie argues that the district court erred by awarding little or no
injunctive relief at fifty-four stores where the grocery exclusives were binding and
enforceable as restrictive covenants. At thirty-seven of these stores, the court
found no violation, and thus refused to issue injunctions. Where it did order
injunctive relief, at seventeen other stores, it did so on a limited basis, requiring
only that Defendants ensure that their sale of food items did not exceed an
allowable shelving area. Winn-Dixie claims that this relief was insufficient
because the district court erred in interpreting the terms “staple or fancy groceries”
and “sales area.” Despite the district court’s careful analysis of this difficult
matter, we are compelled to reverse as to these fifty-four stores because the court
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interpreted the essential terms in the grocery exclusives based on a mistaken
application of state law.
Florida law applies to forty-one of these stores located in Florida, 14 where
the district court either found no covenant violation (twenty-five stores) or entered
injunctive relief limited to the narrowly construed grocery exclusive terms
(sixteen). Winn-Dixie says that we are bound by a Florida appellate case that
construed a materially identical Winn-Dixie grocery exclusive much more broadly
than the district court did here. See 99 Cent, 811 So. 2d at 722. Because we agree
as a matter of Florida law, and we are bound by Florida law, we reverse and
remand as to these forty-one stores for a new trial based on an interpretation of the
grocery exclusives terms consistent with the holding of the Florida Third District
Court of Appeals in 99 Cent.
We review de novo the district court’s interpretation of the language of the
restrictive covenant. See Gibbs v. Air Canada, 810 F.2d 1529, 1532 (11th Cir.
1987) (“Contract interpretation is generally a question of law subject to de novo
14
BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
BL555/WD307; BL558/WD160; BL553/WD236; BL1519/WD306; BL1628/WD348;
BL1711/WD302; BL4258/WD254; DG1056/WD489; DG1416/WD622; DG1453/WD662;
DG1541/WD629; DG2634/WD777; DG2969/WD681; DG7376/WD737; DG 8551/WD561;
DT332/WD2311; DT723/WD254; DT807/WD657; DT892/WD2230; DT986/WD737;
DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2714/WD2205; DT2804/WD84;
DT2838/WD412; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
DT4625/WD577.
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review on appeal.”). However, if the language “is ambiguous and the district court
must look to extrinsic evidence to determine the intent of the parties, the district
court’s determination of such intent is a finding of fact and is reviewed using the
clearly erroneous standard.” United Benefit Life Ins. Co. v. U.S. Life Ins. Co., 36
F.3d 1063, 1065 (11th Cir. 1994).
The district court narrowly construed the covenant terms, confining “staple
and fancy groceries” to food items and measuring “sales area” based only on
shelving space. The court did so based on a long-standing general principle of
Florida law: ambiguous restrictive covenants necessarily receive a narrow
construction. The Florida Supreme Court has explained:
Covenants restraining the free use of real property, although not
favored, will nevertheless be enforced by courts of equity where the
intention of the parties is clear in their creation, and the restrictions
and limitations are confined to a lawful purpose and within reasonable
bounds, unless the rights created by such covenants have been
relinquished or otherwise lost. Such covenants are strictly construed
in favor of the free and unrestricted use of real property, but effect
will be given to the manifest intention of the parties as shown by the
language of the entire instrument in which the covenant appears, when
considered in connection with the circumstances surrounding the
transaction. Due regard must be had for the purpose contemplated by
the parties to the covenant, and words used must be given their
ordinary, obvious meaning as commonly understood at the time the
instrument containing the covenants was executed, unless they have
acquired a peculiar meaning in the particular relation in which they
appear, or in respect to the particular subject-matter involved, or
unless it clearly appears from the context that the parties intended to
use them in a different sense.
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Moore v. Stevens, 106 So. 901, 903 (Fla. 1925) (emphasis added). Florida law
calls for a two-stage analysis. Courts first ask whether a restrictive covenant is
ambiguous. And second, if it is, “substantial ambiguity or doubt must be resolved
against the person claiming the right to enforce the covenant.” Id. at 904.
First, then, we are required to determine whether the grocery exclusives are
indeed ambiguous. In Florida, ambiguity exists when a restrictive covenant “is
susceptible to two different interpretations, each one of which is reasonably
inferred from [its] terms.” Commercial Capital Res., LLC v. Giovannetti, 955 So.
2d 1151, 1153 (Fla. 3d DCA 2007); see also Cont’l Ins. Co. v. Roberts, 410 F.3d
1331, 1333 (11th Cir. 2005) (noting that a term is ambiguous under Florida law “if
it is subject to two reasonable interpretations”). “In reviewing a document, a court
must consider the document as a whole, rather than attempting to isolate certain
portions of it. A court must look first to the plain language of a document and
consider parol evidence only when the document is ambiguous on its face.”
Lambert v. Berkley S. Condo. Ass’n, Inc., 680 So. 2d 588, 590 (Fla. 4th DCA
1996) (citations omitted); see Rose v. M/V “Gulf Stream Falcon”, 186 F.3d 1345,
1350 (11th Cir. 1999) (“Contract interpretation principles under Florida law
require us to look first at the words used on the face of the contract to determine
whether that contract is ambiguous.”).
19
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If we were to assess the covenant terms using only this general analysis,
both terms might appear ambiguous: “staple or fancy groceries” and “sales area”
could be read as “susceptible to more than one reasonable interpretation.” Auto-
Owners Ins. Co. v. Anderson, 756 So. 2d 29, 34 (Fla. 2000). Neither of the terms
is defined in the document. Referencing the historical evolution of the
supermarket, Winn-Dixie argues that “staple or fancy groceries” includes both
food and nonfood items. Originally, the general store sold a variety of household
items, food and nonfood. The supermarket incorporated the sale of perishables
like meat, dairy, and produce alongside the traditional grocer’s wares. Winn-Dixie
also cites to the Consumer Expenditure Study, an annual industry report of
supermarket sales offered in evidence at trial that lists “Grocery-Non Food” as a
category containing products like detergents, household supplies, and paper
products. On the other hand, the Defendants have offered a reasonable food-only
interpretation by pointing to the all-food examples listed immediately after “staple
or fancy groceries”: “meats, fish, vegetables, fruits, bakery goods, dairy products
or frozen foods.” Thus, groceries might mean only foods because “a word is
known by the company it keeps (the doctrine of noscitur a sociis).” Gustafson v.
Alloyd Co., 513 U.S. 561, 575 (1995); see, e.g., Beecham v. United States, 511
U.S. 368, 371 (1994) (“That several items in a list share an attribute counsels in
20
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favor of interpreting the other items as possessing that attribute as well.”). Thus
the term “groceries” appears to admit at least two reasonable interpretations.
At first blush, the same could be said of the term “sales area.” Winn-Dixie
argues that “sales area” must include the aisle space in which shoppers stand when
accessing shelves. “Shoppers do not arrive by chopper, sending ropes down to
hoist up their purchases.” 99 Cent, 811 So. 2d at 722. But Defendants counter that
“sales area” applies only to the physical space occupied by shelves displaying
restricted products. A Dollar General official “testified that there are many ways
to measure ‘sales area,’ including linear feet of the fixture shelves, linear feet of
the fixture footprint, cubic feet, square feet of the fixture footprint, and square feet
of the fixture footprint plus one-half of the adjacent aisle space.” Different
readings of the grocery exclusive appear plausible.
Still, we cannot assess ambiguity in this case without accounting for what a
Florida intermediate appellate court has said before about these very terms. In a
2002 decision, Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.
2d 719, Florida’s Third District Court of Appeals interpreted a standard grocery
exclusive materially identical to many of those at issue in this case. 15 In that case,
15
The grocery exclusive in the Winn-Dixie lease in 99 Cent provided, in relevant part:
Landlord further covenants and agrees not to permit or suffer any property located
within the shopping center to be used for or occupied by any business dealing in
or which shall keep in stock or sell for off-premises consumption any staple or
21
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like here, the trial court based injunctive relief on a definition of the terms limited
to only food items and shelving area, “the combined square footage of the store’s
display racks, containing the items at issue.” Id. at 721. The Florida appellate
court reversed, finding that a shopping center tenant was “bound by the clear
words” of a Winn-Dixie restrictive covenant. Id. at 722. The court stated that,
when a document does not define its terms, “to find the plain and ordinary meaning
of words, one looks to the dictionary.” Id. Referring to Webster’s Third New
International Dictionary (1986), the court interpreted “groceries” to include
nonfood items like “many household supplies (as soap, matches, paper napkins).” 16
Id. Further, the court determined that “[l]imiting the amount of sales area to just
the ‘footprint’ of the actual fixtures is not a reasonable construction of the clause at
issue” because “[s]hoppers make their choices while standing in aisles and the 500
square feet provided for in the leases at issue obviously contemplated customers
fancy groceries, meats, fish, vegetables, fruits, bakery goods, dairy products or
frozen foods without written permission of the Tenant; except the sale of such
items is not to exceed the lesser of 500 square feet of sales area or 10% of the
square foot area of any storeroom within the shopping center, as an incidental
only to the conduct of another business.
99 Cent, 811 So. 2d at 720 (emphasis omitted).
16
In full, Webster’s Third New International Dictionary defines “groceries” as “articles of food
and other goods sold by a grocer.” Webster’s Third New International Dictionary 1001 (2002).
A “grocer” is “a dealer in staple foodstuffs (as coffee, sugar, flour) and usually meats and other
foods (as fruits, vegetables, dairy products) and many household supplies (as soap, matches,
paper napkins).” Id.22
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viewing and purchasing products from such aisles.” Id. Therefore, for a grocery
exclusive that contained a materially identical restriction on the sale of “staple or
fancy groceries” to those found in ninety-one of the ninety-seven stores at issue in
this case, the Florida court remanded for a more extensive injunction that counted
nonfood grocery items and sales area including aisles. Id.The district court avoided applying 99 Cent, nevertheless, by distinguishing
its factual and legal context, even though it recognized that “the standard grocery
exclusive considered in 99 Cent is identical to the standard grocery exclusives in
these consolidated cases.” “[W]hether a decision is binding on another is
dependent upon there being similar facts and legal issues. . . . [W]here the . . .
underlying facts are different, then a previous decision should not be binding.”
U.S. Fire Ins. Co. v. J.S.U.B., Inc., 979 So. 2d 871, 882-83 (Fla. 2007). The
district court distinguished 99 Cent, which involved one lease signed in 1999, from
the current case, which involved many stores and leases that had been signed in the
1950s, 1960s, 1970s, 1980s, and 1990s, a fact deemed significant “in light of the
changing definition of ‘groceries’ over the past sixty years.” The trial court
concluded that “[i]t would be untenable . . . to apply 99 Cent’s definition of
‘groceries’ in 2002 to leases that were signed as much as forty-five years earlier in
five different states” because “what 99 Cent considered to be ‘groceries’ in 2002 is
23
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likely more expansive than what . . . the parties to the leases at issue . . . considered
to be groceries in previous years.”
We do not find it so easy to distinguish 99 Cent from the present case. A
Florida court considering the meaning of the same terms in a materially identical
grocery exclusive sided with Winn-Dixie, finding these terms to be clear and
unambiguous based on a dictionary definition. Thus, the 99 Cent court applied an
alternate Florida rule of contract construction: “One looks to the dictionary for the
plain and ordinary meaning of words.” Beans v. Chohonis, 740 So. 2d 65, 67 (Fla.
3d DCA 1999); see Garcia v. Fed. Ins. Co., 969 So. 2d 288, 291-92 (Fla. 2007)
(assessing ambiguity in an insurance contract by consulting a dictionary as a
“reference[] commonly relied upon to supply the accepted meanings of words”);
Citizens Prop. Ins. Corp. v. M.A. & F.H. Props., Ltd., 948 So.2d 1017, 1020 (Fla.
3d DCA 2007) (citing 99 Cent for the principle that, “[i]n the absence of a
contractual definition, we must presume that [a] word was intended to be used in
its plain and ordinary way as can be ascertained by reference to a dictionary”).
The fact that a similar form contract was signed many times over five decades in
the current case, but was signed only once in 99 Cent, does little to undermine the
Florida court’s conclusions about the plain meaning of the same covenant terms.
The appellate court in no way based its conclusions on the development of the
24
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terms over time. Nor, significantly do we see any material evolution of the
dictionary definition of groceries over the period when the leases were signed.
The Florida court in 99 Cent referenced Webster’s Third New International
Dictionary, which was first published in 1961. Its definitions of “groceries” and
“grocer” have remained unchanged since. Notably, just one lease in this case was
signed before publication of Webster’s Third New International.17 And that lease,
from 1958, included a nonstandard exclusive (with no mention of “staple or fancy
groceries”) that the district court found unenforceable anyway on other grounds.
Regardless, Webster’s Second New International Dictionary, published first in
1934, also defined groceries to allow non-food items: a grocer is “a dealer in tea,
sugar, spices, coffee, fruits, and various other commodities, chiefly foodstuffs.”
Webster’s Second New International Dictionary 1105 (1958) (emphasis added).
Indeed, a review of other dictionaries reveals no evidence of a contrary or
changing definition. See, e.g., Oxford English Dictionary 862 (2d ed. 1991)
(groceries are “goods sold by a grocer;” a grocer is “[a] trader who deals in spices,
dried fruits, sugar, and, in general, all articles of domestic consumption except
those that are considered the distinctive wares of some other class of tradesmen”
(emphasis added)); Webster’s New Collegiate Dictionary 502 (1979) (“groceries”
are “commodities sold by a grocer”; a “grocer” is “a dealer in staple foodstuffs,
17
BL554/WD671.
25
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household supplies, and usu. meats, produce, and dairy products” (emphasis
added)).
The district court also supported its interpretation of these terms by pointing
to language in approximately twenty of the leases that referred to “groceries” as
“food items.” More specifically, the standard grocery exclusives in these leases
included additional carve outs for some drug stores, providing, for example, that
“the permitted sale of the above listed food items shall be expanded to 1,500 sq. ft.
of sales area.” The Defendants contend that, because the carve out refers to
“groceries” as among “the above listed food items,” only food sales are restricted.
This argument fails too because the very same type of carve out, including the
same reference to “above listed food items,” was present in the lease at issue in 99
Cent. In short, a Florida appellate court looking at identical language did not read
“above listed food items” to restrict “groceries” to only food. This interpretation is
consistent with the text: it is possible that the added carve-outs were meant only to
restrict food grocery sales, whereas the original language retained broader
meaning. Because the Florida court confronted the same added language, no such
distinction can be wedged between this case and 99 Cent on that basis.
Federal courts sitting in diversity are “bound to adhere to decisions of
[Florida’s] intermediate appellate courts, absent some persuasive indication that
the state’s highest court would decide the issue otherwise.” Studstill v. Borg
26
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Warner Leasing, 806 F.2d 1005, 1007 (11th Cir. 1986) (per curiam) (alteration in
original) (quoting Provau, 772 F.2d at 820). We see no persuasive indication that
the Florida Supreme Court would interpret the grocery exclusives in this case
differently than the state appellate court did for the materially identical language
found in 99 Cent. Indeed, the only other state intermediate appellate court to
confront the interpretation of the Winn-Dixie grocery exclusives reached the same
result in a nonprecedential order affirming without opinion when a trial court
followed 99 Cent. See Winn-Dixie Stores, Inc. v. Noble Management Co. &
Dolgencorp, Inc., No. CI 05-CI-1874, (Fla. 9th Jud. Cir. Aug. 31, 2007), aff’d sub
nom. Dolgencorp, Inc. v. Winn-Dixie Stores, Inc., 988 So. 2d 1287 (Fla. 5th DCA
2008) (per curiam without opinion).
We are Erie-bound to give effect to the state rules of decision on the
meaning and application of restrictive covenants. Thus, we conclude that the
district court erred in finding the terms ambiguous and proceeding to the second
step to construe the terms narrowly. Instead, the court should have followed the
holding in 99 Cent by looking to the dictionary definitions, which instruct that
“groceries” includes food and “many household supplies (as soap, matches, paper
napkins)” and that sales area “includes fixtures and their proportionate aisle
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space.” 811 So. 2d at 722 (emphasis added). 18 Because the district court erred in
discerning and applying Florida’s law, for these forty-one Florida stores, we
reverse the judgment of the district court and remand the case for a new trial based
on the definition of the terms “staple or fancy groceries” and “sales area” under
Florida law as pronounced by Florida’s Third District Court of Appeals in 99
Cent. 19
C.
Of course, the Florida court’s analysis in 99 Cent is binding only as a
pronouncement of Florida law. But the district court applied Florida law to the
interpretation of grocery exclusive terms found in all the leases at issue, including
for eleven stores in Alabama 20 and two in Georgia.21 In this diversity case we must
18
As the Florida court did in 99 Cent, we note that “it may not be easy to pinpoint each item to
be considered groceries.” Id. However, we have faith in the district court’s ability to apply both
the specific holding and the general analytical framework drawn in that case.
19
This same analysis disposes of one of the issues on cross-appeal, at least as to the stores in
Florida. Big Lots argues that the district court erred in defining beverages as “groceries” because
they are not “food” items. But Big Lots’ basis for this argument drops out when 99 Cent is
applied, because that case does not limit groceries to food. Moreover, Webster’s Third New
International Dictionary lists among the products sold by a grocer “dairy products,” presumably
including milk, a beverage. Webster’s Third New International Dictionary 1001 (2002). It also
lists coffee, which, even if dry, suggests grocers sell some beverage products. Id. The district
court did not err in counting beverages as groceries under Florida law.
20
DG246/WD478; DG2965/WD428; DG4952/WD599; DG8665/WD579; DG11814/WD574;
DT153/WD463; DT2395/WD461; DT2936/WD599; DT3382/WD514; DT4133/WD456;
DT4637/WD471. The district court found no covenant violation and thus issued no relief at any
of these stores, except for DG8665/WD579, which was in violation by less than fifty square feet
and was ordered to comply.
28
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follow the choice of law rules of the forum state, Florida. See Mazzoni Farms, 166
F.3d at 1164. A Florida court adjudging a restriction on property in another state
applies the substantive law of the home state (lex loci rei sitae). See Xanadu of
Cocoa Beach, Inc. v. Zetley, 822 F.2d 982, 985 (11th Cir. 1987); Connor v. Elliott,
85 So. 164, 165 (Fla. 1920) (“So far as real estate or immovable property is
concerned, the laws of the state where it is situated furnish the rules which govern
its descent, alienation, and transfer, the construction, validity, and effect of
conveyances thereof, and the capacity of the parties to such contracts or
conveyances, as well as their rights under the same.”). Therefore, Florida law
requires that the laws of Alabama and Georgia be applied to interpret restrictive
covenants running with property located in those states unless the parties validly
consented to the application of Florida law. The record in no way indicates such
consent. Therefore, we reverse and remand the judgment of the district court
concerning the eleven Alabama stores and the two found in Georgia and direct the
court to apply the appropriate state law rules of decision for those locations. 22
III.
21
DT582/WD166; DT2160/WD443. At both stores, the court found no violation and ordered no
relief.
22
On appeal, none of the parties specifically argued for the application of Alabama and Georgia
law to the restrictive covenants binding stores in those states. However, we do not deem this
issue waived, since Winn-Dixie broadly challenged the district court as having failed “to follow
controlling state law governing the enforcement and plain meaning of Winn-Dixie’s grocery
exclusives.”
29
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For the remaining forty-three stores, the district court denied all relief on
other grounds, regardless of whether the stores violated Winn-Dixie’s grocery
exclusives. Discerning no error as to these stores, we affirm.
A.
After barring testimony from Winn-Dixie’s expert on damages, Dr. Pacey,
the district court refused to award compensatory damages for any store at issue.
Winn-Dixie argues that the court erred in excluding Dr. Pacey, but we disagree.
The district court acted within its considerable discretion when it concluded that
Dr. Pacey’s testimony would not assist the trier of fact and that her methodology
was not sufficiently reliable.
We review for abuse of discretion a trial court’s decision to exclude an
expert’s testimony. Kilpatrick v. Breg, Inc., 613 F.3d 1329, 1334 (11th Cir. 2010);
see also Gen. Elec. Co. v. Joiner, 522 U.S. 136, 140 (1997). Exclusion of an expert
amounts to an abuse of discretion if the court “applies the wrong law, follows the
wrong procedure, bases its decision on clearly erroneous facts, or commits a clear
error in judgment.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).
The district court enjoys “considerable leeway” in making such evidentiary
decisions, and will be reversed only if “the ruling is manifestly erroneous.” United
States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc).
30
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Under Rule 702 of the Federal Rules of Civil Procedure, interpreted in
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993), the
district courts perform an essential “gatekeeping” function in screening expert
scientific and technical evidence. Frazier, 387 F.3d at 1260. To this end, trial
courts conduct a rigorous three-part inquiry that asks: (1) if the expert is qualified
by background, training, and expertise to testify competently regarding the matters
he intends to address; (2) whether the methodology by which the expert reaches his
conclusions is sufficiently reliable as determined by the sort of inquiry mandated in
Daubert; and (3) if the expert testimony would assist the trier of fact, through the
application of scientific, technical, or specialized expertise, to understand the
evidence or to determine a fact in issue. Id.Here, the district court barred Dr. Pacey’s testimony based on the second
and third prongs: her reports “would not assist the trier of fact in determining a fact
in issue in this case” and “her methodology [wa]s not sufficiently reliable.” To
begin with, the court criticized Dr. Pacey’s analysis because it measured merely
the effect of the presence of a competing store, without reflecting that most of the
Defendants’ stores were permitted to sell some grocery products. The district court
found that, “[b]y measuring overall competition and consumer behavior instead of
Winn-Dixie’s damages caused by Defendants’ violations of the grocery exclusives,
. . . Dr. Pacey’s Reports are analyzing the wrong problem and therefore do not
31
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assist the trier of fact to determine a fact in issue in this case.” The district court
also determined that, because Dr. Pacey’s economic model and regression analysis
did not provide empirical evidence of causation, “the probative value of her
evidence is substantially outweighed by the danger of misleading the jury under
Fed. R. Evid. 403.” The court expressed a number of other concerns with the
expert’s reports: they were not peer reviewed; they used Winn-Dixie sales data
drawn from recession years in 2009 and 2010 to calculate damages during the pre-
recession period from 2005 through 2008, when Winn-Dixie sales likely were
higher; they presumed without sufficient support that customers purchased meat
and other groceries at the same store; they considered only competitors within an
arbitrary three mile radius of a Winn-Dixie store; and they alleged damages
suffered by Winn-Dixie for products that Defendants’ stores do not sell.
The district court acted within its broad discretion in determining that Dr.
Pacey’s reports could not satisfy the second and third Daubert prongs. In this case,
these two considerations are connected. Dr. Pacey’s testimony was not based upon
a methodology that could reliably estimate Winn-Dixie damages caused by
Defendants’ covenant violations. As a result, her testimony would not assist the
trier of fact in determining a fact at issue.
First, the trial court could fairly determine that the regression analysis
employed by Dr. Pacey was not a reliable method of showing damages suffered by
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Winn-Dixie as a result of grocery exclusive violations. Dr. Pacey’s model failed to
recognize that nearly all of the restrictive covenants permitted some amount of
grocery sales at Defendants’ stores. Winn-Dixie acknowledges this shortcoming,
but argues that a finder of fact could calculate damages merely by applying a
“credit” for “permitted” sales. The district court rejected this approach, however,
because the analysis measured “overall competition and consumer behavior instead
of Winn-Dixie’s damages caused by Defendants’ violations of the grocery
exclusives.” Dr. Pacey measured for the effect of the wrong factor -- a dollar
store’s proximity, not its prohibited grocery sales. The district court could
determine, as it did, that “no tweaking can fix that problem.” Winn-Dixie also
argues that Dr. Pacey believed that sales of grocery products up to a maximum of
500 square feet of sales area have zero or negligible impact. But the district court
reasonably rejected the unsupported assumption that, because Winn-Dixie permits
some sales, those permitted sales must have no effect on supermarket revenue. In
the end, Dr. Pacey’s regression model was not a reliable method for establishing
the damages caused by Defendants’ violations of restrictive covenants. Dr. Pacey
herself admitted to the district court, when asked why her regression analysis did
not measure “the effect of the violation” instead of the more general presence of a
competitor: “if you want to measure it that way, it’s not a regression measure.
Then don’t use regression. Use some other avenue.”
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Second, because Dr. Pacey’s methodology did not reliably measure Winn-
Dixie’s damages, and instead estimated the effect of a Defendant store’s presence
on Winn-Dixie sales, the trial court could determine that her testimony would not
have helped the trier of fact. In Daubert, the Supreme Court explained:
Rule 702 further requires that the evidence or testimony “assist the
trier of fact to understand the evidence or to determine a fact in issue.”
This condition goes primarily to relevance. “Expert testimony which
does not relate to any issue in the case is not relevant and, ergo, non-
helpful.” 3 Weinstein & Berger ¶ 702[02], p. 702-18. The
consideration has been aptly described by Judge Becker as one of
“fit.” “Fit” is not always obvious, and scientific validity for one
purpose is not necessarily scientific validity for other, unrelated
purposes. The study of the phases of the moon, for example, may
provide valid scientific “knowledge” about whether a certain night
was dark, and if darkness is a fact in issue, the knowledge will assist
the trier of fact. However (absent creditable grounds supporting such
a link), evidence that the moon was full on a certain night will not
assist the trier of fact in determining whether an individual was
unusually likely to have behaved irrationally on that night. Rule 702’s
“helpfulness” standard requires a valid scientific connection to the
pertinent inquiry as a precondition to admissibility.
509 U.S. at 591-92 (citations omitted).
Here, the trial court could reasonably determine that “fit” is lacking. Dr.
Pacey studied the correlation between Winn-Dixie non-meat grocery sales and the
presence of a Defendant’s store nearby. But, to prove its claims, Winn-Dixie
needed to make a far more precise showing: that Winn-Dixie suffered damages as
a result of Defendants’ sale of groceries in a larger sales area than permitted by the
restrictive covenants. Dr. Pacey’s analysis employed tools far too blunt to
34
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illuminate this question. Winn-Dixie asks to bridge too broad a logical gap: the
fact that Dr. Pacey found lower Winn-Dixie sales when a dollar store is nearby
sheds little light on the amount of direct damages caused by a Defendant’s
impermissible grocery sales. But admission of the evidence could mislead a jury
into believing that the data speaks to a causal link. See Frazier, 387 F.3d at 1263(“[E]xpert testimony may be assigned talismanic significance in the eyes of lay
jurors, and, therefore, the district courts must take care to weigh the value of such
evidence against its potential to mislead or confuse.”). As the district court
explained:
[T]he issue in this case is not whether Defendants are competing with
Winn-Dixie. The issue is what damages, if any, Defendants caused
Plaintiffs by selling more groceries than allowed in the respective
stores’ grocery exclusives. Since Dr. Pacey’s Reports do not provide
any empirical evidence on this issue, I find that allowing her to testify
may cause a jury to believe that Defendants are causing Plaintiffs’
damages by selling more groceries than allowed, when her regression
model and other empirical data is only focused on competition.
Thus, the district court acted within its discretion in excluding Dr. Pacey’s
testimony when it found her conclusions about damages were not based on reliable
methodology and her analysis did not assist the trier of fact (here, the district court)
with any issue in the case. See Goodman v. Highlands Ins. Co., 607 F.2d 665, 668
(5th Cir. 1979) (“[A] trial judge sitting without a jury is entitled to even greater
35
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latitude concerning the admission or exclusion of evidence.”); 23 see also In re
Unisys Sav. Plan Litig., 173 F.3d 145, 158 (3d Cir. 1999). While the court
expressed a number of additional concerns with Dr. Pacey’s analysis, particularly
with the variables underlying her regression calculations, we need not address
them to affirm the court’s exclusion of her testimony.
B.
Winn-Dixie’s unsuccessful Daubert argument is the only challenge it makes
to the court’s conclusion that Winn-Dixie could not prove damages. See Winn-
Dixie, 886 F. Supp. 2d at 1346 (explaining that, after Dr. Pacey was excluded,
evidence as to damages “was hopelessly speculative,” and “Winn-Dixie effectively
conceded that it could not prove damages”). Thus, we see no error in the district
court’s determination that Winn-Dixie cannot prove compensatory damages. With
damages off the table, then, we affirm the denial of all relief as to thirty-one stores
that had closed by the time of trial, necessarily making injunctions ineffective.24
For the same reason, we affirm as to four stores for which Winn-Dixie does not
23
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as
binding precedent all decisions of the former Fifth Circuit handed down before October 1, 1981.
24
BL570/WD612; DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30;
DG1389/DG710; DG1402/WD2260; DG1413/WD631; DG1421/WD144; DG1451/WD723;
DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
DG1649/WD2342; DG2363/WD411; DG2762/WD652; DG3013/WD713; DG4008/WD553;
DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221; DG7457/WD167;
DG7539/WD577; DG7584/WD639; DG7883/WD305; DG9149/WD750; DG10484/WD654;
DT1135/WD116.
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challenge the district court’s determination that injunctive relief was unavailable
because of Rule 65(d). 25
C.
We also affirm the district court’s refusal to enforce the grocery exclusives
at six stores in Louisiana26 and one store Mississippi27 pursuant to the laws of those
states. We review the district court’s interpretation of state law in a diversity case
de novo. Jones v. United Space Alliance, L.L.C., 494 F.3d 1306, 1309 (11th Cir.
2007).
1.
The district court refused to enforce the restrictive covenants under
Louisiana law, concluding that state law required more than “a clearly expressed
intention” that a covenant run with the land. We agree. In Louisiana, “[m]erely
stating that a contract is to ‘run with the land’ does not create immoveable rights.”
U-Serve Petroleum & Invs., Inc. v. Cambre, 486 So. 2d 821, 824 (La. Ct. App.
1986). Instead, for a covenant to run with the land -- to be a “real obligation” -- it
“can be established only by a title. . . . [T]he real obligation must be clearly
apparent from the title documents themselves.” Leonard v. Lavigne, 162 So. 2d
25BL554/WD671; DG7268/WD123; DG9263/WD705; DT1805/WD705.
26
DG626/WD1537; DG770/WD1540; DG2685/WD1572; DG7824/WD1588;
DG10357/WD1431; DT2161/WD1555.
27
DG1026/WD1511.
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341, 343 (La. 1964). The district court refused to enforce Winn-Dixie’s grocery
exclusives at the six Louisiana locations at issue because the grocery exclusives
were not a “real obligation” clearly apparent from the “title documents.”
Winn-Dixie’s effort to squeeze a common law rule into the civil law fails
because, in Louisiana, a lease contract is not a title document that can give rise to a
real obligation. See Leonard, 162 So. 2d at 343. “Under the civil law concept, a
lease does not convey any real right or title to the property leased, but only a
personal right.” Richard v. Hall, 874 So. 2d 131, 145 (La. 2004). Winn-Dixie thus
cannot enforce its grocery exclusives under Louisiana law because the leases
established only personal, not real property rights -- the leases containing the
grocery exclusives are not title documents that can create a real obligation. See
Leonard, 162 So. 2d at 343 (refusing to find a covenant running with the land when
a lease provision restricted operation of a competing filling station on adjoining
property); Wolfe v. N. Shreveport Dev. Co., 228 So. 2d 148, 149-51 (La. Ct. App.
1969) (refusing to find a covenant running with the land when a lease provision
prohibited the operation of other shoe stores in a shopping center); see also U-
Serve, 486 So. 2d at 824 (“Although the contract in question stated that it was to
‘run with the land,’ it was in fact a personal contract between Cambre and U-Serve
because it favored the person of U-Serve and not a dominant estate.”). In short, the
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district court did not err in concluding that Louisiana law does not recognize Winn-
Dixie’s grocery exclusives as real obligations running with the land.
2.
Likewise, the district court declined to enforce a grocery exclusive against
one Dollar General store at issue in Mississippi because of a lack of privity of
estate. Again, we find no error. The Mississippi Supreme Court requires that
“privity of estate must exist between the person claiming right to enforce the
covenant and the person upon whom burden of covenant is to be imposed.” Hearn
v. Autumn Woods Office Park Prop. Owners Ass’n, 757 So. 2d 155, 158 (Miss.
1999); see Vulcan Materials Co. v. Miller, 691 So. 2d 908, 913 (Miss. 1997). In
Mississippi, privity of estate exists between “those who stand in mutual or
successive relationship to the same rights of property,” Lipscomb v. Postell, 38
Miss. 476, 489 (1860). In other words, privity of estate is “that which exists
between lessor and lessee, tenant for life and remainderman or reversioner, etc.,
and their respective assignees, and between joint tenants and coparceners.” Hearn,
757 So. 2d at 158 (quoting Black’s Law Dictionary 1080 (5th ed. 1979)).
Mississippi case precedent does little to elaborate on this privity
requirement. Traditionally, however, privity of estate is satisfied when a party
shows both horizontal and vertical privity. See 9 Powell on Real Property
§ 60.04(3)(c)(v) (Michael Allan Wolf ed., 2001 & Supp. 2013). Horizontal privity
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requires that a covenant is created as part of a simultaneous conveyance of an
estate between the parties. 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
§ 26 (2014). Here, such a relationship did exist. The shopping center landlord
shared a lessor-lessee relationship with tenant Winn-Dixie when the grocery
exclusive was included in the lease agreement.
Vertical privity, by contrast, refers to the relationship between a covenanting
party and her successor(s) in interest: here, between the landlord and Dollar
General. Id. Vertical privity comes in two flavors, strict and relaxed:
To establish vertical privity, a chain of title must be established
between the original covenantor or covenantee and the person claimed
to be bound by the covenant or entitled to its benefit. For “strict”
vertical privity, the successor must hold the same estate (in durational,
not geographical, terms) as the original party to the servitude; for
“relaxed” vertical privity, the successor may hold a lesser estate
carved out of the estate held by the original party. Lessees of the
person holding the same estate as an original party to the covenant and
life tenants of property in which the remainder or reversion is the
same estate as that of an original party to the covenant are not in strict
vertical privity, but meet the requirement for relaxed vertical privity.
Restatement (Third) of Prop.: Servitudes § 5.2 cmt. b. (2000). In the present case,
relaxed vertical privity exists, but strict vertical privity does not. Because Dollar
General took only part of the landlord’s estate (a leasehold), and was not an
assignee of its entire interest, there is no strict vertical privity. However, because
Dollar General took a part of the estate, relaxed privity is satisfied. Thus, Winn-
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Dixie cannot enforce its grocery exclusive for the Mississippi store if that state
requires strict vertical privity.
Mississippi case law does not address the appropriate vertical privity
standard. The modern trend, exemplified in the Third Restatement of Property, is
to eliminate the vertical privity requirement. Instead of following this trend,
Mississippi courts have retained a general privity rule in recent cases without
specifying what type of vertical privity they require. See, e.g., Journeay v. Berry,
953 So. 2d 1145, 1154 (Miss. Ct. App. 2007). Therefore, to determine the vertical
privity rule in Mississippi, we look to earlier authorities that reflect the traditional
privity principles from which Mississippi drew its doctrine. “The first Restatement
of Property took the position that relaxed vertical privity is required for the benefit
of covenants to run either at law or in equity, and that strict vertical privity is
required for the burdens of covenants to run at law.” Restatement (Third) of Prop.:
Servitudes § 5.2 cmt. b. Indeed, the First Restatement of Property explained:
The successors in title to land respecting the use of which the owner
has made a promise are not bound as promisors upon the promise
unless by their succession they hold
(a) the estate or interest held by the promisor at the time
promise was made, or
(b) an estate or interest corresponding in duration to the
estate or interest held by the promisor at that time.
Restatement (First) of Prop. § 535 (1944). The Restatement authors commented:
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The restriction of liability to cases where this formal identification
exists rests in modern times upon the feeling that the imposition of an
obligation as a promisor, upon one who has not promised, by virtue of
succession to another who has should be kept within relatively narrow
even though formal limits.
Id. cmt. a.
Though courts and commentators do not universally agree about the wisdom
of a strict vertical privity requirement, courts in a number of states have cited the
First Restatement in requiring strict vertical privity for a burden to run. See, e.g.,
Marathon Fin. Co. v. HHC Liquidation Corp., 483 S.E.2d 757, 765 (S.C. Ct. App.
1997); Grimes v. Walsh & Watts, Inc., 649 S.W.2d 724, 728 (Tex. App. 1983);
Old Dominion Iron & Steel Corp. v. Va. Elec. & Power Co., 212 S.E.2d 715, 721
(Va. 1975). We believe that, confronted with this question, Mississippi courts
would follow this trend and require strict vertical privity to enforce the burden of a
restrictive covenant. As a result, because strict vertical privity does not exist
between Dollar General and the shopping center landlord in this case, Winn-Dixie
cannot enforce a restrictive covenant against the Mississippi store.
D.
We also affirm the district court’s conclusion that Winn-Dixie could not
enforce a covenant against one Dollar General store in Florida whose lease was
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signed before the Winn-Dixie lease that contained the restrictions. 28 Winn-Dixie
argues that, under Florida law, subsequent modifications to the terms of Dollar
General’s lease made the covenant enforceable. Reviewing de novo this question
of state law, we find that the lease modifications here did not subject Dollar
General to covenants created after its original lease.
“Restrictive covenants are only enforceable against those who have notice
of such restrictions . . . .” Hagan v. Sabal Palms, Inc., 186 So. 2d 302, 311 (Fla. 2d
DCA 1966) (quoting Batman v. Creighton, 101 So. 2d 587, 593 (Fla. 2d DCA
1966)). Therefore, a party who takes an interest in property before a restriction is
created, and who thus lacks notice of that limitation, is not bound by a restrictive
covenant. See Norwood Shopping Ctr., Inc. v. MKR Corp., 135 So. 2d 448, 450
(Fla. 3d DCA 1961). One cannot know of what does not exist. However, after
Winn-Dixie signed its lease, Dollar General agreed to lease modifications that
“extended the term, added some common area maintenance charges that were not
involved in the original lease, changed the property tax obligation, added some
options to renew under specific terms, and altered the original percentage rent
provisions.” Winn-Dixie argues that, because Dollar General executed these lease
modifications, it formed a new lease subject to Winn-Dixie’s then-existing
property rights.
28
DG1420/WD611.
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No Florida precedent, and little national case law, addresses whether a lease
modification can subject a tenant to a restrictive covenant formed after creation of
the original leases. A New York case cited by the district court provides the
closest comparator. See L’Art de Jewel Ltd. v. Hudson Sheraton Corp., 46 A.D.3d
418 (N.Y. App. Div. 2007). There, the dispute involved two jewelers who leased
space in a hotel. The jeweler who signed the later lease sued the first based on a
restrictive covenant, claiming that the first “was on notice of the terms of the
restrictive covenant in plaintiff’s lease when [the first jeweler] commenced a ‘new’
term of its license.” Id. at 420. The New York appellate court rejected this
argument:
Th[e] agreement between [the first jeweler] and the hotel merely
amended the existing May 1999 license by extending its term and
relocating [the jeweler’s] operation in a different part of the hotel’s
lobby. As to all other particulars, the May 1999 agreement continued
in effect, and governed the rights of the parties in regard to [the
jeweler’s] operation in the hotel lobby.
Id. Because the original lease remained in effect, albeit subject to modified terms
concerning the length of the lease and location of the operation, the first jeweler’s
original lease controlled for purposes of determining restrictive covenants. As a
result, later lease modifications did not bind a first tenant to a restrictive covenant
created by a second tenant’s lease. Subsequent New York cases cite and apply the
rule found in L’Art. See Ernie Otto Corp. v. Inland Se. Thompson Monticello,
LLC, 91 A.D.3d 1155, 1157 (N.Y. App. Div. 2012) (explaining that, for purposes
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of enforcing restrictive covenants, “[m]ere amendments to a preexisting tenant’s
lease, that do not materially affect the rights of the parties under it or otherwise
work to annul the prior agreement, do not constitute a new agreement”); Fratelli’s
Pizza & Rest. Corp. v. Kayzee Realty Corp., 74 A.D.3d 481, 481 (N.Y. App. Div.
2010) (“[T]he subject restrictive covenant cannot be enforced against a competing
tenant whose lease predates the covenant’s execution, absent evidence that the
competing tenant’s lease is falsely dated, or that the competing tenant, before
entering into its lease, had notice of the landlord’s intention to enter into the
covenant . . . .”).
A Florida court likely would apply the same rule, particularly because in
Florida “[r]estrictive covenants are not favored and are to be strictly construed in
favor of the free and unrestricted use of real property.” Wilson v. Rex Quality
Corp., 839 So. 2d 928, 930 (Fla. 2d DCA 2003) (citing Moore, 106 So. at 903); cf.
Fratelli’s Pizza, 74 A.D.3d at 482 (“[G]uided by the principles that restrictive
covenants in leases, such as use clauses, are ‘strictly construed against those
seeking to enforce them’ . . . we find that the language of the subject restrictive
covenant is consistent with its prospective application, and that the parties did not
intend the covenant to apply to tenants with preexisting leases.” (citations
omitted)). A lease modification that alters only such terms as the lease length and
cost, and that otherwise demonstrates an intent to leave the remaining conditions of
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the underlying lease unchanged, does not automatically bind the modifying tenant
to restrictive covenants executed after the date of the original lease.
Nevertheless, Winn-Dixie cites to a number of cases drawn from other
contexts in which Florida courts found that material alterations in lease
modifications gave rise to new agreements. One court held that a landlord’s
statutory lien was not entitled to priority when the “landlord and tenant terminated
the original lease prior to any default of the tenant’s lease obligations and entered
into a new lease after creditors’ security interest was perfected.” Robie v. Port
Douglas (Fla.), Inc., 662 So. 2d 1389, 1390 (Fla. 4th DCA 1995); see Flowers v.
Centrust Sav. Bank, 556 So. 2d 1123, 1125 (Fla. 3d DCA 1989) (“[W]hen the
commencement of a tenancy, based upon a lease, creates a statutory landlord’s lien
. . . such lien is viable only as long as the underlying lease exists.”). Other courts
have ruled that a real estate broker’s entitlement to commissions “ends with the
original lease term where an extension of that term involves new and different
rights and responsibilities of the landlord and tenant so that in effect a ‘new’ lease
has been negotiated.” Rauch v. Chama Invs., N.V., 641 So. 2d 501, 502 (Fla. 4th
DCA 1994) (per curiam); see Strano v. Reisenger Real Estate, Inc., 534 So. 2d
1214, 1215 (Fla. 3d DCA 1988) (lease modification was not a “renewal” for
purposes of a real estate broker’s entitlement to a commission). Finally, when a
new arbitration statute was enacted between the signing of an original lease and a
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modification, a court held that the statute applied because the modification
amounted to a new agreement. See Bartke’s, Inc. v. Hillsborough Cnty. Aviation
Auth., 217 So. 2d 885, 887 (Fla. 2d DCA 1969).
These cases represent Florida law for cases that involve statutory lien
priority, real estate broker commissions, and the applicability of arbitration
statutes. But they say precious little about the enforcement of a restrictive
covenant, a disfavored device that involves far different policy considerations. We
decline to extrapolate from these dissimilar cases when Florida law disfavors
restrictive covenants as restraining the free use of land. The district court did not
err in determining that Florida law bars enforcement of the restrictive covenant
against the Dollar General store, whose lease was signed before Winn-Dixie’s,
merely because Dollar General entered into later modifications of time and price
terms.
E.
Winn-Dixie raises a number of other issues that lack merit, and thus do not
alter the outcome at any stores.
1.
Winn-Dixie argues that the district court should have awarded punitive
damages pursuant to Florida law. After a bench trial, we review a district court’s
decision to award or deny punitive damages for abuse of discretion. See Claiborne
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v. Ill. Cent. R.R., 583 F.2d 143, 154 (5th Cir. 1978) (“Having determined that a
punitive damages award under section 1981 is permissible, we also find no abuse
of discretion in the grant of such an award in this case.”).
Florida law allows punitive damages only “if the trier of fact, based on clear
and convincing evidence, finds that the defendant was personally guilty of
intentional misconduct or gross negligence.” Fla. Stat. § 768.72(2). “‘Intentional
misconduct’ means that the defendant had actual knowledge of the wrongfulness of
the conduct and the high probability that injury or damage to the claimant would
result and, despite that knowledge, intentionally pursued that course of conduct,
resulting in injury or damage.” Id. § 768.72(2)(a). “‘Gross negligence’ means that
the defendant’s conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed
to such conduct.” Id. § 768.72(2)(b).
The district court denied punitive damages because “[t]he grocery exclusives
sought to be enforced against the Defendants are rife with ambiguities and the
scope of their restrictions are uncertain at best,” and, “[m]oreover, Plaintiffs did
not make a formal demand on Defendants to comply with their grocery exclusives
prior to filing this lawsuit.” The district court did not abuse its discretion in
determining that Winn-Dixie failed to prove, by clear and convincing evidence,
that the Defendants committed the requisite intentional misconduct or gross
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negligence. The proper construction of the grocery exclusives presents a difficult
question of Florida law upon which reasonable observers surely can differ. Winn-
Dixie provided no evidence indicating actual intent, nor that Defendants acted in a
grossly negligent manner. Instead, the evidence presented indicated that
Defendants conducted themselves in accordance with a reasonable interpretation of
the grocery exclusives. The district court did not err in denying punitive damages
when it found Winn-Dixie failed to meet its burden under Florida law. Cf. Mee
Indus. v. Dow Chem. Co., 608 F.3d 1202, 1221 (11th Cir. 2010) (“Although
sufficient evidence was presented to place the issues of probable cause and advice
of counsel before the jury, the closeness of those issues confirms that the evidence
is insufficient to allow a reasonable juror to find by the clear and convincing
standard that Dow could be liable for punitive damages.”).
2.
Winn-Dixie also argues that collateral estoppel precluded Dollar General
from relitigating the enforcement, scope, and meaning of the grocery exclusives in
force at any of its stores at issue. Winn-Dixie claims that the district court should
have given preclusive effect to a Florida decision in which Winn-Dixie obtained a
final judgment granting injunctive relief for a single Dollar General store not at
issue in this case. See Noble, No. CI 05-CI-1874 (Fla. 9th Jud. Cir. Aug. 31,
2007). The district court refused to apply collateral estoppel because “the issues in
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these cases are not identical to Noble and thus issue preclusion cannot be granted.”
We review de novo whether Florida law allowed the district court to give
preclusive effect to the state court judgment. Aldana v. Del Monte Fresh Produce
N.A., 578 F.3d 1283, 1288 (11th Cir. 2009) (“The question whether to give
preclusive effect to a state court’s judgment is a question of law, and thus also is
reviewed de novo.”).
“Under the Full Faith and Credit Act, 28 U.S.C. § 1738, a federal court must
‘give preclusive effect to a state court judgment to the same extent as would courts
of the state in which the judgment was entered.’” Brown v. R.J. Reynolds Tobacco
Co., 611 F.3d 1324, 1331 (11th Cir. 2010) (quoting Kahn v. Smith Barney
Shearson Inc., 115 F.3d 930, 933 (11th Cir. 1997)). Therefore, we give preclusive
effect to a state court judgment if: “(1) the courts of the state from which the
judgment emerged would do so themselves; and (2) the litigants had a full and fair
opportunity to litigate their claims and the prior state proceedings otherwise
satisfied the applicable requirements of due process.” Quinn v. Monroe Cnty., 330
F.3d 1320, 1329 (11th Cir. 2003). In Florida, “collateral estoppel applies if (1) an
identical issue, (2) has been fully litigated, (3) by the same parties or their privies,
and (4) a final decision has been rendered by a court of competent jurisdiction.”
Id.; see Essenson v. Polo Club Assocs., 688 So. 2d 981, 983 (Fla. 2d DCA 1997).
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Here, the result turns on the appropriate Florida rule for assessing whether
issues are identical. Florida case law does not discuss in any great detail the
standard for measuring the identity of issues. However, the authors of the Second
Restatement of Judgments, which Florida courts have cited in otherwise applying
collateral estoppel, see, e.g., Cook v. State, 921 So. 2d 631, 634 (Fla. 2d DCA
2005), commented:
When there is a lack of total identity between the particular matter
presented in the second action and that presented in the first, there are
several factors that should be considered in deciding whether for
purposes of the rule of this Section the “issue” in the two proceedings
is the same, for example: Is there a substantial overlap between the
evidence or argument to be advanced in the second proceeding and
that advanced in the first? Does the new evidence or argument
involve application of the same rule of law as that involved in the
prior proceeding? Could pretrial preparation and discovery relating to
the matter presented in the first action reasonably be expected to have
embraced the matter sought to be presented in the second? . . .
Sometimes, there is a lack of total identity between the matters
involved in the two proceedings because the events in suit took place
at different times. In some such instances, the overlap is so
substantial that preclusion is plainly appropriate. . . . Preclusion
ordinarily is proper if the question is one of the legal effect of a
document identical in all relevant respects to another document whose
effect was adjudicated in a prior action.
Restatement (Second) of Judgments § 27 cmt. c (1982). We believe that Florida
courts would consider factors like those elaborated in the Restatement comments
when determining the identity of issues.
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Here, identity of issues is lacking because of differences in the time,
location, and terms of the leases. These differences made pretrial preparation and
discovery necessarily broader than that required for Noble. Unlike the lease in
Noble, created in 1985 for a single store in Osceola County, Florida, leases for the
fifty-one Dollar General stores at issue in this case were signed across three
decades throughout four states. Interpretation of the leases in this case has not
“previously been decided between” Winn-Dixie and Dollar General. Mobil Oil
Corp. v. Shevin, 354 So. 2d 372, 374 (Fla. 1977); cf. Rufenacht v. Iowa Beef
Processors, Inc., 656 F.2d 198, 203 (5th Cir. Sept. 1981) (refusing to apply
collateral estoppel due to non-identical issues when “each claim is referable to a
separate and distinct cattle transaction”); id. at 204 n.2 (“[E]stoppel applies [when]
there is an actual identity of issues . . . as opposed to the cases at bar which involve
separate albeit similar sales of cattle.”). Without identity of issues, Winn-Dixie
cannot invoke offensive issue preclusion as to the interpretation of the leases
involved in this action.
Arguing for collateral estoppel, Winn-Dixie cites only Provau v. State Farm
Mutual Automobile Insurance Co., 772 F.2d at 821, in which a panel of this Court
interpreted substantive state law by looking to a previous state decision when “the
language in the two policies at issue [were] substantially similar.” But Provau did
not use this analysis in the context of collateral estoppel. Moreover, Provau
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highlighted “particular judicial concerns” with offensive collateral estoppel that
counsel against its broad application. Id.; see Johnson v. United States, 576 F.2d
606, 614 (5th Cir. 1978) (“[T]he offensive use of collateral estoppel calls for the
courts to use special care in examining the circumstances to ascertain that the
defendant has in fact had a full and fair opportunity to litigate and that preclusion
will not lead to unjust results.”). The district court made no error in refusing to
recognize collateral estoppel under Florida law.
3.
Finally, Winn-Dixie challenged the district court’s application of the Florida
standard for injunctive relief, arguing that the court improperly required that Winn-
Dixie show that a remedy at law was inadequate. Compare Autozone Stores, Inc.
v. Ne. Plaza Venture, LLC, 934 So. 2d 670, 673 (Fla. 2d DCA 2006) (“Injunctive
relief is normally available to redress violations of . . . restrictive covenants
[affecting real property] without proof of irreparable injury or a showing that a
judgment for damages would be inadequate. The value of a restrictive covenant
. . . is often difficult to quantify and may be impossible to replace.” (alterations in
original) (quoting Restatement (Third) of Prop.: Servitudes § 8.3 cmt. b), with Liza
Danielle, Inc. v. Jamko, Inc., 408 So. 2d 735, 738 (Fla. 3d DCA 1982) (requiring
that a plaintiff seeking to enforce an “exclusivity” clause as a restrictive covenant
barring retail competition “prove two interrelated requirements necessary to
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establish its right to injunctive relief: (1) that it was without an adequate remedy at
law, or (2) that it would suffer irreparable harm if the injunction were denied”).
Though it required such a showing, the district court concluded that no legal
remedy was adequate because Winn-Dixie could not prove damages. Winn-Dixie,
886 F.Supp. 2d at 1348 (“Having rejected Plaintiffs’ claim for damages as too
speculative and considering my skepticism that Plaintiffs could ever provide
sufficient evidence to be entitled to an award of damages, I find that a remedy at
law is inadequate.”). In this appeal, aside from the challenge to the exclusion of
Dr. Pacey’s testimony, no party contests the district court’s conclusion that a
remedy at law was inadequate. Given this finding, Winn-Dixie satisfied the
district court’s standard. That inadequate remedy at law requirement does not in
any way affect the availability of injunctive relief in this case, and Winn-Dixie’s
argument for a less-stringent test has no effect on the outcome at any store. We
thus have no occasion to consider whether the court erred in its application of the
Florida injunction standard.
Ultimately, then, we affirm as to the forty-three stores for which the district
court denied all relief without reaching the question of whether Defendants
violated the grocery exclusives. Because the district court made no error when, for
a variety of other reasons, it found it unnecessary to examine whether covenants
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had been broken at these locations, we do not disturb its denial of all relief as to
these stores.
IV.
Big Lots and Dollar Tree separately raise a number of issues on cross-
appeal. We review the district court’s interpretation of state law de novo. Jones,
494 F.3d at 1309. None of the cross-appeals have merit.
A.
First, Big Lots argues that a Florida statute requires that Big Lots have
signed the restrictive covenant to be bound by it. We find no error in the district
court’s determination that Florida law permits enforcement of the covenants.
Section 542.335 of the Florida Statutes concerns “[v]alid restraints of trade
or commerce” -- typically, non-compete agreements. It provides that “[a] court
shall not enforce a restrictive covenant unless it is set forth in a writing signed by
the person against whom enforcement is sought.” Fla. Stat. § 542.335(1)(a)
(2011). Big Lots contends that the district court erred in allowing Winn-Dixie to
enforce a restrictive covenant against non-signatory stores. But this argument is
foreclosed by Winn-Dixie Stores, Inc. v. Dolgencorp, Inc., 964 So. 2d 261 (Fla. 4th
DCA 2007), in which a Florida intermediate appellate court held that, with respect
to § 542.335(1)(a), “‘a restrictive covenant’ does not include real property
covenants running with the land. Rather, the section is directed at personal service
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contracts not to compete.” Id. at 268. The Florida court in Winn-Dixie
distinguished a case now relied upon by Big Lots, Tusa v. Roffe, 791 So. 2d 512(Fla. 4th DCA 2001), because “there was no claim in Tusa that the . . . use
restriction was a real property covenant running with the land.” Winn-Dixie, 964
So. 2d at 269; see id. (“There is no indication in Tusa that any of the leases were
recorded or that the parties intended to create covenants running with the land.”).
But the covenants here ran with the land and section 542.335 does not apply.
Florida law does not require that Winn-Dixie have signed a contract with Big Lots
to enforce its real covenant.
Big Lots argues “that the holding in Winn-Dixie contradicts the clear
mandate of Section 542.335.” Big Lots’ Reply Br. 3. It urges that the Florida
Supreme Court would read section 542.335 as applying to the restrictive covenant
in this case, or that this Court should certify the question. We disagree. The
holding of the Florida appellate court in Winn-Dixie represents a reasonable
interpretation of a statute that deals with personal, not real, covenants. We see no
“persuasive indication that the state’s highest court would decide the issue
otherwise.” Studstill, 806 F.2d at 1007 (quoting Provau, 772 F.2d at 820).
Moreover, we do not see sufficient ambiguity to warrant certification. See
Forgione v. Dennis Pirtle Agency, Inc., 93 F.3d 758, 761 (11th Cir. 1996) (per
curiam) (noting that certification is appropriate “[w]hen substantial doubt exists
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about the answer to a material state law question upon which the case turns”).
Because it applied the appropriate Florida case precedent, the district court did not
err in allowing Winn-Dixie to enforce a covenant running with the land against
non-signatory co-tenants.
B.
Big Lots argues next that Winn-Dixie failed to join indispensable
parties -- the shopping center landlords. We review a district court’s decision
regarding the joinder of indispensable parties for abuse of discretion. United States
v. Rigel Ships Agencies, Inc., 432 F.3d 1282, 1291 (11th Cir. 2005) (per curiam);
Mann v. City of Albany, Ga., 883 F.2d 999, 1003 (11th Cir. 1989). “A district
court abuses its discretion when, in reaching a decision, it applies an incorrect legal
standard, follows improper procedures in making the determination, or makes
findings of fact that are clearly erroneous.” Rigel Ships Agencies, 432 F.3d at
1291 (quoting S.E.C. v. Smyth, 420 F.3d 1225, 1230 (11th Cir. 2005)).
Federal Rule of Civil Procedure 19 sets out two steps for determining
whether a party must be joined as indispensable. First, under Rule 19(a), the court
determines “whether the person in question is one who should be joined if
feasible.” Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263,
1280 (11th Cir. 2003) (quoting Challenge Homes, Inc. v. Greater Naples Care Ctr.,
Inc., 669 F.2d 667, 669 (11th Cir. 1982)). Second, for all such necessary parties, a
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court determines whether the Rule 19(b) factors permit the litigation to continue if
the party cannot be joined, or instead whether they are indispensable. Id.First, then, we look to the language of Rule 19(a)(1) to determine if the
landlords were necessary parties:
A person who is subject to service of process and whose joinder will
not deprive the court of subject-matter jurisdiction must be joined as a
party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject
of the action and is so situated that disposing of the
action in the person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or
(ii) leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a)(1).
Here, the landlords are not necessary parties under Rule 19(a)(1)(A) because
the district court could provide “complete relief” among the litigants without
joining the landlords. Winn-Dixie sought legal and equitable relief in the form of
damages or an injunction against Big Lots. The district court could award all of
the requested relief without haling the landlords into court because Big Lots was
fully able to pay damages and comply with injunctions. Cf. Focus on the Family,
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344 F.3d at 1280 (finding that a party was necessary when “complete relief cannot
be afforded in Eller’s absence, as PSTA cannot require the running of a particular
advertisement on its bus shelters”).
Nor does Rule 19(a)(1)(B) require that the landlords be joined. Section
(B)(i) does not make the landlords necessary because they had no rights at stake in
the litigation that were in danger of being “impair[ed] or imped[ed]” by the case
proceeding without them. Big Lots acknowledges that in future litigation the
landlords will not be bound by the decision of the district court. Instead, Big Lots
urges under section (B)(ii) that, because the landlords were not joined, Big Lots
will be subject to “inconsistent obligations.” Fed. R. Civ. P. 19(a)(1)(B)(ii). It
mistakes the meaning of this term. Big Lots labels as an inconsistent obligation a
breach of contract claim against it brought by a landlord. Yet the resolution of a
separate contract dispute between Big Lots and its landlord in no way conflicts
with the district court’s determination that Big Lots violated the grocery exclusive.
As a panel of the First Circuit explained:
“Inconsistent obligations” are not . . . the same as inconsistent
adjudications or results. Inconsistent obligations occur when a party
is unable to comply with one court’s order without breaching another
court’s order concerning the same incident. Inconsistent adjudications
or results, by contrast, occur when a defendant successfully defends a
claim in one forum, yet loses on another claim arising from the same
incident in another forum.
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Delgado v. Plaza Las Ams., Inc., 139 F.3d 1, 3 (1st Cir. 1998) (per curiam)
(citations omitted); accord Sch. Dist. of City of Pontiac v. Sec’y of U.S. Dep’t of
Educ., 584 F.3d 253, 282 (6th Cir. 2009) (en banc) (“Inconsistent obligations arise
only when a party cannot simultaneously comply with the orders of different
courts.”); Cachil Dehe Band of Wintun Indians of the Colusa Indian Cmty. v.
California, 547 F.3d 962, 976 (9th Cir. 2008) (“We adopt the approach endorsed
by the First Circuit [in Delgado].”).
Moreover, where two suits arising from the same incident involve different
causes of action, defendants are not faced with the potential for double liability
because separate suits have different consequences and different measures of
damages. See In re Torcise, 116 F.3d 860, 866 (11th Cir. 1997). Here, the case on
appeal involves claimed violations of the restrictive covenants, while Big Lots
complains of secondary suits from landlords alleging breach of lease contracts.
Big Lots does not face section (B)(ii) “inconsistent obligations,” and has no other
Rule 19(a) hook on which to hang its mandatory joiner hat. As a result, we need
not reach the second step to consider, under Rule 19(b), “whether, in equity and
good conscience, the action should proceed among the existing parties or should be
dismissed.” Fed. R. Civ. Pro. 19(b). The district court did not abuse its discretion
in refusing to dismiss the case for failure to join the landlords.
C.
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Finally, Big Lots argues that Winn-Dixie cannot enforce its restrictive
covenants because it neglected to make “a reasonable demand for compliance with
the restriction after the breach has occurred.” Majestic View Condo. Ass’n v.
Bolton, 429 So. 2d 438, 439 (Fla. 4th DCA 1983). We find no pre-suit demand
requirement here because the cases relied upon by Big Lots concern materially
different species of covenants. Big Lots first points to Richards v. Dodge, 150 So.
2d 477, 483 (Fla. 2d DCA 1963), in which a residential tenant raised breach of
covenants as an affirmative defense in a landlord’s action for unpaid rent. The
court found that the tenant was estopped from asserting the defense because she
had failed to notify the landlord that she objected to the presence of a male co-
tenant. Id. at 484-85. The Florida court noted that “[d]emand for performance is a
necessary prerequisite to breach insofar as affirmative covenants are concerned.”
Id. Richards added a caveat that “[n]otice of breach and demand of performance
are not required of the covenantee in order to entitle him to action against the
covenantor upon breach of his covenant, unless the event upon which the action
accrues is mainly or exclusively within the knowledge of the covenantee.” Id. at
483 (quoting 21 C.J.S. Covenants § 88 (1940)). But, Richards, which addressed
only affirmative covenants, does not impose a pre-suit demand requirement for
Winn-Dixie’s enforcement of restrictive covenants running with the land.
Moreover, the caveat makes demand unnecessary because the alleged breach of the
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grocery exclusives was not “mainly or exclusively within the knowledge of” Winn-
Dixie, the covenantee seeking enforcement. Big Lots was on notice of the
restrictive covenants and was best positioned to know its own inventory. Even if
the test in Richards applied, Winn-Dixie need not have made demand.
Big Lots also looks to Majestic View, in which a condominium association
sued unit owners for violating a restrictive covenant limiting pets to “one dog or
cat under twenty-five pounds.” 429 So. 2d at 439. A Florida appellate court
reversed a trial court that had applied a “due process” test requiring “a
condominium association to provide a unit owner with an adversary proceeding
before seeking to enforce its restrictive covenants in court.” Id. at 439-40. Finding
no basis in law for imposing such a due process test, the court noted that the condo
association had given the residents pre-suit notice of the violation. Id. Without
explanation or analysis, the court cited Richards in noting that enforcement of the
restrictive covenant required “a reasonable demand for compliance with the
restriction after the breach has occurred.” Id. at 439.
Majestic View involved the special relationship among a condominium
association and its constituent unit owners. See id. at 440 (“Condominium unit
owners comprise a little democratic sub society of necessity more restrictive as it
pertains to use of condominium property than may be existent outside the
condominium organization.” (quoting Hidden Harbour Estates, Inc. v. Norman,
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309 So. 2d 180 (Fla. 4th DCA 1975)). The only other Florida case in this vein,
Europco Management Co. of America v. Smith, 572 So. 2d 963, 966-67 (Fla. 1st
DCA 1990), similarly concluded that a residential developer did not owe any more
due process to homeowners when enforcing restrictive covenants than outlined in
Majestic View. Id. (“The undisputed facts of this case show that Europco
complied with all necessary due process requirements for enforcement of a
protective covenant such as involved in this case. See Majestic View . . . .”).
Winn-Dixie is a commercial tenant whose covenant limiting competition
within a shopping center arises in a far different context than the residential
restrictions enforced by the condominium association in Majestic View and the
residential management company in Europco. And both Majestic View and
Europco refused to impose burdensome “due process” requirements for enforcing
covenants. Regardless, even if these cases imposed a pre-suit demand requirement
here, the exception in Richards would relieve any need for demand because
violations at Big Lots stores were not “mainly or exclusively within the knowledge
of” Winn-Dixie.
Buttressing this conclusion, not a single Florida case has barred enforcement
of a restrictive covenant for want of demand. When commercial parties seek to
enforce restrictive covenants involving the operation of grocery stores and similar
establishments, as best as we can tell, the Florida courts have made no mention of
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any demand requirement. See Eckerd Corp. v. Corners Grp., Inc., 786 So. 2d 588,
590 (Fla. 5th DCA 2000); AC Assocs. v. First Nat’l Bank of Fla., 453 So. 2d 1121,
1124 (Fla. 2d DCA 1984); Norwood Shopping Ctr., 135 So. 2d at 449; see also
Massari v. Salciccia, 102 Fla. 847, 852 (1931). In Dolgencorp, the Florida court
noted that Winn-Dixie had made a demand upon the landlord, but made no
mention of any demand made on the dollar store defendant. 964 So. 2d at 263.
Courts around the country have considered whether and how to enforce similar
restrictive covenants without mentioning a demand requirement. See, e.g,
Tippecanoe Assocs. II, LLC v. Kimco Lafayette 671, Inc., 829 N.E.2d 512, 513
(Ind. 2005); Davidson Bros., Inc. v. D. Katz & Sons, Inc., 643 A.2d 642, 643 (N.J.
Super. Ct. App. Div. 1994); Blueberries Gourmet, Inc. v. Aris Realty Corp., 291
A.D.2d 520 (N.Y. App. 2002); Great Atl. & Pac. Tea Co. v. Bailey, 220 A.2d 1, 2
(Pa. 1966); Foods First, Inc. v. Gables Assocs., 418 S.E.2d 888, 889 (Va. 1992).
The district court did not err in enforcing the restrictive covenant without a pre-suit
demand.
Because Florida law imposed no pre-suit demand requirement on Winn-
Dixie for enforcement of the restrictive covenants, we have no occasion to consider
whether Big Lots waived this argument by not pleading it as an affirmative
defense. See Fed. R. Civ. P. 9(c) (“[W]hen denying that a condition precedent has
occurred or been performed, a party must do so with particularity.”)
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D.
In its lone issue on cross-appeal, Dollar Tree argues that the Florida statute
of limitations precluded Winn-Dixie from enforcing its restrictive covenants
because the continuing tort doctrine should not apply. We review the district
court’s grant of summary judgment on an affirmative defense de novo. See
Capone v. Aetna Life Ins. Co., 592 F.3d 1189, 1194 (11th Cir. 2010).
Florida applies a five-year limitations period to actions to enforce a
restrictive covenant. Fla. Stat. § 95.11(2)(b); Pond Apple Place III Condo. Ass’n
v. Russo, 841 So. 2d 526, 527 (Fla. 4th DCA 2003). Here, however, the district
court applied “the doctrine of continuing tort” because “each day Plaintiffs’
grocery exclusives were allegedly violated resulted in a distinct, separate breach of
the restrictive covenant.” The continuing tort doctrine, or the continuing violation
principle, distinguishes between a single act that causes multiple, cascading harms,
and recurrent, repetitive acts excepted from the running of the statute of
limitations: “A continuing tort is ‘established by continual tortious acts, not by
continual harmful effects from an original, completed act.’” Suarez v. City of
Tampa, 987 So. 2d 681, 686 (Fla. 2d DCA 2008) (quoting Horvath v. Delida, 540
N.W.2d 760, 763 (Mich. Ct. App. 1995)).
Dollar Tree reasons that, because Winn-Dixie brings contract, not tort
claims, there is no continuing “tort.” But Florida law does not so clearly
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distinguish between covenant-enforcement actions and tort suits for purposes of
the continuing violation principle. Dollar Tree cites contract cases in which courts
found that the cause of action accrued at the first breach, with no applicable
continuing violation principle. See Garden Isles Apts. No. 3, Inc. v. Connolly, 546
So. 2d 38, 41 (Fla. 4th DCA 1989); see also Servicios De Almacen Fiscal Zona
Franca y Mandatos S.A. v. Ryder Int’l, Inc., 264 F. App’x 878, 880 (11th Cir.
2008) (per curiam) (unpublished). In turn, Winn-Dixie points to cases involving
torts, such as nuisance and trespass, in which Florida courts recognize a continuing
violation rule, see Carlton v. Germany Hammock Groves, 803 So. 2d 852, 854-56
(Fla. 4th DCA 2002), and to cases involving affirmative covenants, see City of
Quincy v. Womack, 60 So. 3d 1076, 1078 (Fla. 1st DCA 2011) (“In asserting that
the limitations period had expired, the City ignores the continuing nature of its
obligations under the contract, and that its ongoing nonperformance constituted a
continuing breach while the contract remained in effect. The appellee’s cause of
action was not limited to the City’s initial breach, and the section 95.11(2)(b)
statute of limitations had not expired when the appellee filed his lawsuit which
encompassed the City’s continuing breach.”).
No Florida authority has addressed whether the continuing violation doctrine
applies to restrictive covenants running with the land. Because Florida courts look
to decisions from around the country in applying the continuing tort doctrine, the
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parties turn to out-of-state cases. See, e.g., Suarez, 987 So. 2d at 686. Winn-Dixie
cites Barker v. Jeremiasen, 676 P.2d 1259, 1260-61 (Colo. App. 1984), in which a
plaintiff neighbor sued to enforce a restrictive covenant against a horse farm for
violation of a restrictive covenant providing that the property was not to contain
more than twenty head of livestock. The Colorado intermediate appeals court
stated: “We agree with the trial court that defendants’ horse operation resulted in
repeated and successive breaches of the continuing protective covenants which
continued until the date of trial. Thus, the statute of limitations . . . does not bar
this action for breach of covenant.” Id. at 1261.
Similarly, in Black Island Homeowners Ass’n v. Marra, 588 S.E.2d 250,
251-52 (Ga. Ct. App. 2003), plaintiffs sued to enforce a restrictive covenant
requiring that land be maintained in its native state when defendants had
periodically mowed grass. The Georgia court distinguished between two types of
cases: those in which a defendant had erected a permanent fixture violating a
covenant, when the cause of action “accrues when the violation first results,” and
cases in which a defendant commits a “distinct, separate act that constitutes an
alleged breach each time it occurs.” Id. at 253. In the latter type, the court agreed
with the trial court that the statute of limitations does not bar recovery because
“each incidence of mowing gives rise to a new cause of action.” Id. The most
relevant out-of-state case cited by Dollar Tree tracked this distinction: an
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Oklahoma court did not consider the continuing violation doctrine when a fixture,
a “modular home,” violated a restrictive covenant that prohibited buildings near
property lines. Russell v. Williams, 964 P.2d 231 (Okla. Civ. App. 1998).
Based on the parallel application of the continuing tort doctrine in Florida
and persuasive precedent from other states, we believe that Florida law recognizes
a continuing violation principle when restrictive covenants are violated by
ongoing, separate acts. Cf. Carlton, 803 So. 2d at 855-56 (applying the continuing
tort doctrine to nuisance and trespass actions by distinguishing between permanent
injuries and reoccurring injuries to a property owner’s land). Applying this
continuing violation principle, we must determine whether Dollar Tree’s sale of
products allegedly in violation of a Winn-Dixie restrictive covenant amounts to
many discrete acts (measured daily, as the district court found), or instead one
overarching violation dating to the opening of the store. We believe the analogy to
the multiple-violation cases involving horses (Barker) and mowing (Black Island)
to be far more compelling than the comparison to single-violation permanent
fixture cases, such as those involving mobile homes (Russell). The violation here
arises from what is being continuously stocked and sold in Dollar Tree stores.
Winn-Dixie takes no issue with the permanent shelves as such; the violation stems
from the repeated activities that Dollar Tree conducts on those shelves. Just as
keeping more than thirty horses on the land in Barker amounted to repeated and
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successive breaches, the continued offering of more than 500 square feet of
groceries for sale represents discrete, separate breaches of the covenant.
Finally, Dollar Tree argues that the district court erred in granting summary
judgment on the statute of limitations defense because material facts remained in
dispute. Florida courts have repeatedly stated that the question of “[w]hether the
continuing torts doctrine applies to the facts of a case is for a trier of fact to
decide.” Pearson v. Ford Motor Co., 694 So. 2d 61, 67-68 (Fla. 1st DCA 1997).
For example, in Carlton, the Florida appellate court refused to grant summary
judgment recognizing an affirmative defense because the plaintiff had “alleged
sufficient facts with regards to the flooding and resulting damage occurring in the
four years preceding the date suit was filed so as to urge application of the
continuing torts doctrine and preclude summary judgment.” 803 So. 2d 856; see
Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445, 447 (Fla. 2d DCA 1994) (“The
question of whether [Defendants’] actions constituted continuing torts precludes
the granting of summary judgment as to counts I and II. To what extent, if any, the
concept applies to this case is an issue for the trier of fact to decide.”). Typically,
these cases involve the denial of a defendant’s motion for summary judgment
when the plaintiff presents facts suggesting the continuing tort doctrine may apply.
Here, however, Dollar Tree did not dispute material facts before the district court.
Instead, it made purely legal arguments explaining why the continuing tort doctrine
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did not apply. Because this legal position was unsuccessful, the district court was
left with no material facts in dispute, and thus did not err in granting Winn-Dixie
summary judgment on the defense.
Two key material facts could be at issue in a case involving the continuing
tort doctrine: whether any acts took place within the limitations period; and
whether these acts were sufficiently similar to qualify as “continuing” the prior
events. See Rindley v. Gallagher, 890 F. Supp. 1540, 1549 (S.D. Fla. 1995) (“To
establish a continuing violation, the plaintiff must show a substantial nexus
between the time barred acts and the timely asserted acts.”). Here, unlike in the
many cases denying summary judgment, no dispute exists as to either type of fact.
There is no dispute that the acts continued up to a point well within the limitations
period. Nor do the parties dispute that the repeated stocking and selling of
challenged items at Dollar Tree stores remained largely consistent in manner and
scope. As a result, the only issue raised was a pure question of law: whether a
violation of a covenant restricting grocery sales could qualify as a continuing
violation measured each day, or was instead a discrete violation that occurred when
a store first established its shelving arrangements. With no material facts in
dispute, the district court did not err in granting Winn-Dixie summary judgment as
a matter of law.
V.
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In sum, we hold that, for forty-one Florida stores, the district court
misapplied Florida law in determining whether Defendants had violated Winn-
Dixie’s restrictive covenants. 29 For these stores, we reverse and remand for a new
trial based on a definition of “staple or fancy groceries” and “sales area” consistent
with the holding of the Florida Third District Court of Appeals in 99 Cent. We
also hold that the district court applied incorrect state law in determining whether
the Defendants had violated the terms of restrictive covenants at thirteen stores in
Alabama and Georgia. 30 We reverse and remand for interpretation of covenants
binding these Alabama and Georgia stores in accordance with the appropriate law
of each state. We affirm as to the forty-three remaining stores for which the
district denied all relief on other grounds.31
29
BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
BL553/WD236; BL555/WD307; BL558/WD160; BL1519/WD306; BL1628/WD348;
BL1711/WD302; BL4258/WD254; DG1056/WD489; DG1416/WD622; DG1453/WD662;
DG1541/WD629; DG2634/WD777; DG2969/WD681; DG7376/WD737; DG8551/WD561;
DT332/WD2311; DT723/WD254; DT807/WD657; DT892/WD2230; DT986/WD737;
DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2714/WD2205; DT2804/WD84;
DT2838/WD412; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
DT4625/WD577.
30
DG246/WD478; DG2965/WD428; DG4952/WD599; DG8665/WD579; DG11814/WD574;
DT153/WD463; DT582/WD166; DT2160/WD443; DT2395/WD461; DT2936/WD599;
DT3382/WD514; DT4133/WD456; DT4637/WD471.
31
BL554/WD671; BL570/WD612; DG626/WD1537; DG770/WD1540; DG1026/WD1511;
DG1095/WD209; DG1322/WD612; DG1333/WD151; DG1382/WD30; DG1389/DG710;
DG1402/WD2260; DG1413/WD631; DG1420/WD611; DG1421/WD144; DG1451/WD723;
DG1456/WD331; DG1493/WD647; DG1513/WD2326; DG1522/WD2268; DG1524/WD566;
DG1649/WD2342; DG2363/WD411; DG2685/WD1572; DG2762/WD652; DG3013/WD713;
71
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AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
DG4008/WD553; DG4444/WD2213; DG4701/WD649; DG4821/WD3; DG4981/WD221;
DG7268/WD123; DG7457/WD167; DG7539/WD577; DG7584/WD639; DG7824/WD1588;
DG7883/WD305; DG9149/WD750; DG9263/WD705; DG10357/WD1431; DG10484/WD654;
DT1135/WD116; DT1805/WD705; DT2161/WD1555.
72