Silver Comet Terminal Partners, LLC v. Paulding County Airport Authority ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12906
____________________
SILVER COMET TERMINAL PARTNERS, LLC,
SILVER COMET PARTNERS, LLC,
Plaintiffs-Appellants,
versus
PAULDING COUNTY AIRPORT AUTHORITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:18-cv-00239-WMR
____________________
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21-12906 Opinion of the Court 2
Before ROSENBAUM, LAGOA, Circuit Judges, and WETHERELL,∗ Dis-
trict Judge.
PER CURIAM:
This appeal concerns the fallout from a failed effort to bring
commercial passenger service to the Paulding Northwest Atlanta
Airport (“the Airport”), which is about forty miles northwest of
Hartfield-Jackson Atlanta International Airport. The plaintiff-ap-
pellants are two single-purpose entities, Silver Comet Partners,
LLC and Silver Comet Terminal Partners, LLC (together, “Silver
Comet”).1 The defendant-appellee is the Paulding County Airport
Authority, an independent public entity that’s charged with con-
structing, maintaining, and operating airports, including the Air-
port.
In 2012, the Airport Authority and Silver Comet entered two
contracts. Those contracts reflect the parties’ agreement to partner
with the goal of developing the Airport. Key to this partnership
was introducing commercial passenger service to the Airport.
Although the partnership between Silver Comet and the Air-
port Authority started well, things spiraled in 2015, when Paulding
∗ Honorable T. Kent Wetherell, II, United States District Judge, for the North-
ern District of Florida, sitting by designation.
1 The distinction between these entities is irrelevant for our analysis of the
issues on appeal. So except when we have reason to distinguish between the
two, we refer to both collectively, using “Silver Comet.”
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21-12906 Opinion of the Court 3
County, which co-sponsored the Airport with the Airport Author-
ity, elected a new County Board that vehemently opposed bringing
commercial passenger service to the Airport. After progress on de-
veloping the Airport reached a standstill, the Airport Authority in-
voked the termination provisions in both contracts.
Silver Comet then sued the Airport Authority for breach of
contract. Along the way, the Airport Authority moved for sum-
mary judgment. The district court granted that motion in part, and
then held a bench trial to decide the remaining issues. After the
bench trial, the district court entered judgment in the Airport Au-
thority’s favor. On appeal, Silver Comet challenges the district
court’s order granting summary judgment and its entry of judg-
ment following the bench trial.
After a thorough review of the record and with the benefit
of oral argument, we affirm.
I. Background
A. The Parties and the Project
The Georgia Legislature created the Paulding County Air-
port Authority in 1972. The Authority’s task “is to acquire, con-
struct, equip, maintain, improve and operate airports.” Although
the Airport Authority does not report to the Paulding County
Board of Commissioners, the County Board and the Airport Au-
thority contracted to allocate each entity’s responsibilities for the
Airport. That contract charges the Airport Authority, and not the
County Board, with managing the Airport. Still, the County Board,
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as a co-sponsor of the Airport, “is just as financially responsible for
the airport as the” Airport Authority.
Propeller Airports, LLC (“Propeller”), develops, owns, and
operates airports. The man behind Propeller is Brett Smith. A self-
described “businessman,” Smith specializes in partnering with pub-
lic entities to bring commercial passenger service to small, local air-
ports. Perhaps the brainchild for Smith’s business plan is Gil Mor-
gan, whose résumé comprises more than forty years of experience
in the aeronautical industry and includes stints with airlines like
Delta, AirTran, and World Airways. Together, Morgan and Smith
created a model that generates profit by building a terminal at a
smaller airport, introducing commercial passenger service to that
airport, and surrounding the airport with various types of aeronau-
tical-related revenue streams. Those revenue streams can include
anything from concessions to parking, maintenance fees, and even
defense contracts.
In 2012, Smith and the Airport Authority started discussing
an opportunity at the Airport. Those discussions had two compo-
nents: commercial passenger service and property development.
To pursue those projects, Smith created two entities, one for
each project. Those entities are Silver Comet Partners, LLC and
Silver Comet Terminal Partners, LLC, both of which are subsidiar-
ies of Propeller. Together, they are the plaintiff-appellants in this
case.
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B. The Agreements
Silver Comet and the Airport Authority entered into two
agreements pertinent to this appeal: the Lease Option Agreement
and the Airport Use Agreement.
The Lease Option Agreement, which became effective on
October 24, 2012, was between Sliver Comet Partners, LLC, and
the Airport Authority. Broadly speaking, the Lease Option Agree-
ment reflected Silver Comet’s agreement to market and develop
land at the Airport.
The Airport Use Agreement, which became effective on De-
cember 1, 2012, was between Silver Comet Terminal Partners,
LLC and the Airport Authority. Broadly speaking, the Airport Use
Agreement reflected Silver Comet’s agreement to bring commer-
cial passenger service to the Airport.
i. Lease Option Agreement
The Lease Option Agreement obliged Silver Comet to use
“reasonable efforts to market” the option property 2 “for the devel-
opment of aviation and non-aeronautical related operations . . . .”
In exchange for marketing the option property, the Lease Option
Agreement granted Silver Comet “an exclusive right and option to
ground lease the Option Property, subject to the terms and condi-
tions” of the Lease Option Agreement. That option would expire
2 The option property was about 60 acres, divided into three tracts, all of
which surrounded the Airport’s terminal and runway.
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after fifteen years. This appeal implicates two aspects of the Lease
Option Agreement: its termination provision and its representa-
tions and warranties.
We’ll start with the provision concerning the Airport Au-
thority’s right to terminate the agreement, which did not ripen un-
til three years after the agreement’s effective date. From that point
forward, the contract entitled the Airport Authority to send Silver
Comet a “marketing notice” if the former “in good faith reasonably
determine[d] that Silver Comet [was] not using reasonable efforts
to market the Option Property . . . .” Such a marketing notice
would convey to Silver Comet that unless it started “to use reason-
able efforts to . . . market the Option Property within twelve . . .
months from the date of the Marketing Notice, then at the end of
such 12-month period the Lease Option shall no longer be valid.”
But that termination was not self-executing. Rather, “at any time
after the expiration of the applicable 12-month period,” the Airport
Authority needed to send Silver Comet a “termination notice”
once the former “in good faith reasonably determine[d] that Silver
Comet ha[d] not commenced to use reasonable efforts” to market
the option property.
In sum, the Airport Authority could exercise its right to ter-
minate the Lease Option Agreement only after taking two steps
(neither of which it could take until three years after the agree-
ment’s effective date). First, it had to send Silver Comet a “market-
ing notice” after reasonably and in good faith determining that Sil-
ver Comet was not using reasonable efforts to market the option
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property. The marketing notice then triggered a twelve-month
cure period, during which Silver Comet could cure its deficient
marketing efforts by employing reasonable efforts to market the
option property. The second step occurred at the end of that cure
period. From that point on, the Airport Authority could send Silver
Comet a “termination notice” after reasonably and in good faith
determining that Silver Comet had not started to use reasonable
efforts to market the option property.
This appeal also implicates the Lease Option Agreement’s
representations and warranties. Under those provisions, the Air-
port Authority made eleven “representations and warranties” that
were “true and correct” on the day of closing and that would be
“true and correct” on the day that Silver Comet exercised its option
to ground lease the option property.
Only two of those representations and warranties are rele-
vant here. First, the Airport Authority represented and warranted
that there “are no leases, licenses, or occupancy rights, or any con-
tracts, option[s] or other agreements of any kind (including pur-
chase or lease options), affecting the Option Property.” The sec-
ond “representation and warranty” was more of a promise than it
was a representation and warranty. In any case, that provision, in
broad terms, required the Airport Authority to disclose to Silver
Comet anything that directly or indirectly related to one of the
other representations or warranties:
Between the Effective date and the . . . Expiration
Date . . . [the Airport Authority] shall notify Silver
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Comet of any notice, whether written or oral, that re-
lates directly or indirectly upon any representation or
warranty hereunder, which notice shall be delivered
to Silver Comet immediately after receipt of such no-
tice but in no event later than the date that Silver
Comet exercises the Lease Option.
In sum, then, the Airport Authority promised to “notify Silver
Comet” about future “agreements of any kind” that might affect
the option property.
ii. Airport Use Agreement
Under the Airport Use Agreement, the Airport Authority
leased to Silver Comet 700 square feet of office space in the termi-
nal building. The lease was for twenty years. During that lease
period, the Airport Use Agreement also granted Silver Comet cer-
tain rights.
This appeal implicates three of those rights. First, the Air-
port Use Agreement granted Silver Comet an exclusive right to ex-
pand its lease to include the entire terminal building or any part of
it. Second, the Airport Use Agreement entitled Silver Comet to
“require the [Airport Authority] to apply for [a] Part 139 Airport
Operating Certification[ 3] . . . with the Federal Aviation Administra-
tion for the Paulding Northwest Atlanta Airport.” Third, the
3 A Part 139 certification enables an airport to offer commercial passenger ser-
vice. See 14 CFR § 139, et seq.
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Airport Use Agreement required the Airport Authority to “indem-
nify and hold Tenant harmless from and against any and all claims,
actions, damages, liability, and expense in connection with the [Air-
port Authority’s] application for Certification hereunder.” The Air-
port Use Agreement defined “Tenant” as Silver Comet.
This appeal also implicates the Airport Use Agreement’s ter-
mination provision. Under that provision, the Airport Authority
could terminate the lease five years after its effective date unless at
least one of two conditions were satisfied. First, the Airport Au-
thority could not terminate the lease if Silver Comet exercised its
option to occupy “the entire Terminal Building.” Second, the Air-
port Authority could not terminate the lease if there was “commer-
cial passenger service at the Paulding Northwest Atlanta Airport.”
If neither of those conditions were satisfied, then the Airport Au-
thority could terminate its lease by giving “one hundred twenty
(120) days advance written notice” to Silver Comet.
C. Implementation and Termination of the Agreements
From the time the Lease Option Agreement and Airport Use
Agreement took effect until 2015, Silver Comet marketed the op-
tion property. Silver Comet attended “various trade shows, includ-
ing the 2014 National Business Aviation Association Conference,”
where it promoted the option property.
But resistance to the project eventually snowballed, with the
Airport Authority being named as a defendant in at least eight law-
suits. A group of taxpayers, who became known as the “Paulding
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Six” filed several lawsuits challenging the Airport Authority’s ef-
forts to bring commercial passenger service to the Airport. The
City of Atlanta also sued.
Political pressure also began to build. Although the County
Board once favored bringing commercial passenger service to the
Airport, that changed after a 2014 election ushered in a new major-
ity. On January 13, 2015, the newly elected County Board, as its
first official act, passed Resolution 15-01. That resolution withdrew
the County’s application for a Part 139 Certification, dashing any
hopes for bringing commercial passenger service to the Airport:
NOW, THEREFORE, be it resolved by the Paulding
County Board of Commissioners as an Airport spon-
sor that the application to the FAA for a Part 139 Cer-
tificate is hereby withdrawn and any associated envi-
ronmental review is hereby terminated. Accordingly,
the Board of Commissioners hereby directs the Clerk
to transmit immediately this Resolution to the FAA.
Eleven months later, the County sued the Airport Authority in
state court, seeking to enjoin the Authority from obtaining a Part
139 Certification. The County also sought “a declaration determin-
ing that the Airport Authority did not have the power to pursue a
Part 139 application given the County’s new opposition to it.” Sil-
ver Comet intervened in that litigation with the Airport Author-
ity’s consent.
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Enter Mark Reichin, Chief Operating Officer of Propeller.
Reichin had been involved with Silver Comet’s projects in Paulding
County since 2012. He and Smith assumed primary responsibility
for Silver Comet’s efforts to market the option property. At the
start of his involvement, Reichin commuted “back and forth be-
tween New York and Atlanta as necessary” to attend meetings and
the like. But he eventually moved to Georgia in “early 2015,”
meaning that he moved right when the County made its about face
on introducing commercial passenger service to the Airport.
As Reichin saw things, the County’s actions from 2015 on
effectively created a “blockade” on Silver Comet’s ability to do an-
ything at the Airport. Not only that, but Reichin also thought that
it was “going to be hard” to market the option property until all
the lawsuits against the Airport Authority were “resolved.”
Adding to those difficulties was the end of then-Director of
the Airport Authority Blake Swafford’s tenure, which occurred in
April 2016. That made Reichin’s job even harder because he and
Swafford spoke regularly about marketing. The two also often dis-
cussed the Airport’s pending environmental assessment, which
was essential for the Airport to obtain a Part 139 certification. “And
being there on the site with Blake Swafford to try to work through
the environmental assessment,” said Reichin, “it was more efficient
being there all the time.”
Terry Tibbitts replaced Swafford as the director of the Air-
port Authority. Tibbitts, according to Reichin, “wanted to sort of
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be hands off.” Still, Tibbitts kept updating Smith about the Airport
Authority’s progress on obtaining a Part 139 certification.
Four months after Swafford’s tenure with the Airport Au-
thority ended, Propeller moved Reichin to Everett, Washington,
to help develop a different project. That project was very success-
ful.
Reichin maintains that he did not abandon the Airport pro-
ject after leaving Georgia. But his actions tell a different story.
While he attended several trade shows in 2015, Reichin attended
none in 2017 or 2018. Although he traded emails with prospective
companies in 2015, he sent none to prospective companies in 2017
or 2018. And then there’s the website that Silver Comet created.
Reichin concedes that the website hasn’t been updated since it was
created in 2014. Also, while Reichin met with real-estate brokers
between 2013 and 2014, he met with none after he moved to Seat-
tle. In fact, the website even had a feature that allowed real-estate
brokers to contact Silver Comet—but the one broker who used
that feature never received a response.
About five months after Reichin left Georgia, the Airport
Authority sent a marketing notice to Silver Comet, thus triggering
Silver Comet’s twelve-month period to “commence to use reason-
able efforts” to market the Airport. Although Silver Comet re-
sponded, its response did not dispute that it had quit marketing the
Airport.
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One year after the Airport Authority sent Silver Comet the
marketing notice, the Airport Authority invited Silver Comet to at-
tend a meeting. That meeting occurred on December 20, 2017.
Silver Comet sent Morgan to that meeting. The minutes
from that meeting suggest only that the Airport Authority gave Sil-
ver Comet thirty more days “to document marketing efforts.”
Morgan recalled that Silver Comet was “specifically asked to docu-
ment the marketing expenses up to that time.”
Morgan and Tibbitts then met twice for lunch, first in late
December 2017 and again in early January 2018. Morgan brought
with him to those meetings a three-page PowerPoint presentation.
That presentation documented Silver Comet’s obligations under
the Lease Option Agreement, the expenses Silver Comet incurred
while fulfilling those obligations, and the results (and the excuses
for the lack of results) that Silver Comet produced. After making
his case, Morgan asked Tibbitts if he wanted a copy of the Power-
Point. But Tibbitts told Morgan to “hold onto it for now.”
When Tibbitts reported to the Airport Authority’s board,
the board asked him if he had received from Morgan any evidence
that Silver Comet had commenced marketing. “No,” he said. “I
never got anything.”
By June 2018, the Airport Authority had decided to termi-
nate the Lease Option Agreement because it still hadn’t received
anything “to satisfy” its concerns about Silver Comet’s marketing
efforts. The Airport Authority then took marketing into its own
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hands. The month after the Authority decided to terminate the
Lease Option Agreement, David Carmichael, who sat on the Air-
port Authority’s Board, became involved in discussions to lease air-
port property to an aviation academy. Tibbitts learned about those
discussions by August 2018. But nobody spoke with Smith about
those discussions. When asked why nobody spoke with Smith
about the aviation academy, Carmichael said, “I probably should
have done that.”
In any case, the Airport Authority finalized its decision to
terminate the Lease Option Agreement the next month. On Sep-
tember 13, 2018, the Airport Authority sent Silver Comet a termi-
nation notice, effectively terminating the Lease Agreement. Tib-
bitts met with Georgia officials about the aviation academy less
than two weeks later. The Airport Authority finally notified Silver
Comet about its discussions with the aviation academy on October
11, 2018, the day before then-Governor Nathan Deal made a public
announcement about the project.
The summer of 2018 also proved important for Silver
Comet’s expansion rights under the Airport Use Agreement. As
we’ve mentioned, the Airport Use Agreement granted Silver
Comet the right to expand its lease of part of the terminal building
to include the entire terminal building or any other part of it. Silver
Comet sent the Airport Authority a letter at the end of June, noti-
fying the Authority of Silver Comet’s “intent to exercise” its expan-
sion rights under the Airport Use Agreement by expanding its lease
to the entire terminal building.
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The Airport Authority responded to Silver Comet’s notice
of intent one month later. Relying on the terms of the Airport Use
Agreement, the Airport Authority’s response explained how it
reached its calculation that “the total monthly lease rate [would be]
$19,904.40.” The Airport Authority asked Silver Comet to forward
its first month’s payment on or before September 1, 2018, so that
the Airport Authority would “have sufficient time to vacate the en-
tire building.”
Silver Comet replied on September 5, 2018, asking the Air-
port Authority to “amend the Lease to reflect . . . Silver Comet’s
exercise of its expansion option to lease the Terminal Building.” In
that reply, Silver Comet asked the Airport Authority to prepare a
draft lease.
The Airport Authority complied and provided Silver Comet
with a draft lease less than two weeks later. But Silver Comet asked
the Airport Authority to change that lease in two ways. First, it
wanted the Airport Authority to push the effective date back to De-
cember 1, 2018. Second, it wanted the Airport Authority to reduce
the price to $1 per square foot. The Airport Authority agreed to
both requests and supplied Silver Comet with an updated lease.
But even then, Silver Comet was not ready to conclude the
lease expansion. Instead, it sent a letter asking that “the effective
date of December 1, 2018 be placed on hold pending the outcome
of” this lawsuit. This time, the Airport Authority rejected Silver
Comet’s request and told it that the Airport Authority would as-
sume it did not intend to lease the terminal building unless the
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Airport Authority received “an executed lease and payment” be-
fore December 1, 2018. Silver Comet never sent the Airport Au-
thority an executed lease or payment. The Airport Authority then
terminated the Airport Use Agreement on December 7, 2018.
B. Lawsuit
After the Airport Authority terminated the Airport Use
Agreement, Silver Comet filed suit against the Airport Authority in
the Northern District of Georgia. Silver Comet’s operative com-
plaint raised three claims that are relevant to this appeal.
The first two claims allege that the Airport Authority
breached the Lease Option Agreement. The first of those allega-
tions states that the Airport Authority breached the Lease Option
Agreement “by sending its Termination Notice without reasonably
determining in good faith that Silver Comet ha[d] not commenced
to use reasonable efforts to market the Option Property.” Silver
Comet also alleged that the Airport Authority breached the Lease
Option Agreement by failing to disclose to Silver Comet that the
Authority had reached an agreement with the Governor to locate
an aviation academy at the Airport.
The third claim alleged that the Airport Authority breached
the Airport Use Agreement. Silver Comet asserted that the Airport
Authority did so by declining to indemnify Silver Comet for ex-
penses it incurred when applying for the Part 139 certification. In
the same count, Silver Comet sought a declaration of its rights un-
der the Airport Use Agreement.
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i. Summary Judgment Rulings
The parties eventually filed cross-motions for summary
judgment. The district court denied Silver Comet’s motion in full
and granted the Airport Authority’s motion in part. The district
court’s ruling on the Airport Authority’s motion prompts two is-
sues on appeal.
First, Silver Comet contends that the district court erred by
granting summary judgment on its claim relating to the Airport
Authority’s discussions about bringing an aviation academy to the
Airport. As a reminder, one of the Lease Option Agreement’s rep-
resentations and warranties provided in part that there “are no . . .
agreements of any kind . . . affecting the Option Property.” A sec-
ond warranty required the Airport Authority to immediately “no-
tify Silver Comet of any notice, whether oral or written, that relates
directly or indirectly” to any other representation or warranty.
The district court determined that the Airport Authority did
not breach the Lease Option Agreement’s representation-and-war-
ranties provisions, despite failing to contemporaneously disclose to
Silver Comet its discussions regarding the aviation academy. In so
holding, the district court explained that the relevant warranty ap-
plied to only those agreements or contracts that could have encum-
bered the option property. Because the Airport Authority’s discus-
sions with the aviation academy were not “formal agreements,”
the district court held that the Airport Authority did not breach the
representation or warranty provision by failing to disclose the dis-
cussions.
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Second, Silver Comet contends that the district court erred
by granting summary judgment on its claim that the Airport Au-
thority failed to indemnify Silver Comet for expenses connected to
the Part 139 certification application. As a reminder, the Airport
Use Agreement required the Airport Authority to “indemnify and
hold [Silver Comet] harmless from and against any and all claims,
actions, damages, liability, and expense in connection with the [Air-
port Authority’s] application for” a Part 139 certification.
The district court granted summary judgment on that claim
for three reasons, all of which are different formulations of the con-
clusion that the indemnification provision did not cover Silver
Comet’s claimed expenses. First, the district court held that the
indemnification provision covered only those expenses incurred by
Silver Comet—not those incurred by Silver Comet’s parent com-
pany, Propeller. Second, the district court held that the indemnifi-
cation provision did not cover expenses Silver Comet incurred
when expanding the airport’s taxiway. Those expenses, the district
court explained, fell under an exception to the indemnification pro-
vision, which applied to improvement payments. Finally, the court
concluded, “the indemnification provision d[id] not include the
phrase ‘attorney’s fees,’ so [Silver Comet] [wa]s unable to recover
its fees as such.”
The district court’s order partially granting summary judg-
ment left two issues to be decided during a bench trial. First, the
district court found that a genuine issue of material fact existed as
to whether the Airport Authority could terminate the Lease
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Option Agreement. Specifically, the court identified a genuine is-
sue of fact as to whether the Airport Authority reasonably and in
good faith determined that Silver Comet had not commenced us-
ing reasonable efforts to market the option property after receiving
a marketing notice from the Airport Authority. Second, the district
court later clarified that its order partially granting summary judg-
ment did not address whether the Airport Authority could “termi-
nate the Airport Use Agreement according to its terms.” The court
resolved those two issues after a four-day bench trial.
ii. Bench Trial Rulings
The first issue at trial was whether the Airport Authority
could terminate the Lease Option Agreement. As the district court
explained, whether the Airport Authority could terminate the
Lease Agreement turns on two subsidiary issues: “(1) whether the
Airport Authority’s decision to terminate was executed in good
faith, and (2) whether it was reasonable for the Airport Authority
to determine that [Silver Comet] was not using reasonable efforts
to market the property.”
The district court concluded that the Airport Authority ter-
minated the Lease Option Agreement in good faith for two rea-
sons. First, it found that the Airport Authority decided to terminate
the Lease Option Agreement in June 2018. So even though the
Authority started discussing an opportunity with the aviation acad-
emy in July 2018, that fact did not reflect bad faith. In the district
court’s telling, “the record contradicts any suggestion that the Air-
port Authority terminated the option in bad faith (or that it didn’t
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act in good faith) because it allegedly knew of the opportunity with
the Aviation School and wanted to pursue it instead. Second, the
district court concluded that “the fact that [Director] Tibbitts did
not turn over to the Airport Authority’s Board the PowerPoint cre-
ated by Brett Smith with a list of expenses that Propeller has made
does not constitute bad faith or indicate a lack of good faith.”
Those expenses, reasoned the district court, lack any “details of spe-
cific, recent marketing efforts, despite [Silver Comet’s] having been
on notice that their marketing efforts were lacking.”
The district court also found that it was reasonable for the
Airport Authority to terminate the Lease Option Agreement. The
district court acknowledged that there was no dispute that Silver
Comet “marketed the property extensively” before receiving the
marketing notice. It also recognized the difficult task Silver Comet
faced in marketing the property, given all the pending litigation.
Still, the district court explained that “there is a difference between
successful marketing efforts and simply engaging in reasonable
marketing efforts.” Finding that Silver Comet failed to do the lat-
ter, the district court concluded that it was reasonable for the Air-
port Authority to terminate the Lease Option Agreement.
The second issue at trial was whether the Airport Authority
could terminate the Airport Use Agreement. As the district court
explained, “the Airport Authority had a contractual right to termi-
nate the [Airport] Agreement if two conditions were met: (1) there
was no commercial passenger service at the airport, and (2) [Silver
Comet] had not exercised its option to lease the entire terminal
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building.” And, the district court continued, there was no dispute
“that commercial passenger service was not instituted” at the Air-
port. “Thus, the only question for the Court [wa]s whether [Silver
Comet] in fact exercised its option to lease the [terminal] building.”
The district court concluded it did not. To reach that con-
clusion, the district court cited two facts. First, Silver Comet’s let-
ter in June 2018 expressed only its “intent to exercise its right to
expand.” (Emphasis added). Second, in its final email to the Airport
Authority before the Airport Authority terminated the Airport Use
Agreement, Silver Comet asked the Airport Authority to put the
lease’s effective date on hold. As a result, the district court con-
cluded that the Airport Authority had not exercised its option to
lease the terminal building, so the Authority enjoyed the right to
terminate the Airport Use Agreement.
II. Analysis
A. Jurisdiction
We carried two jurisdictional questions with this case. We
turn to them now and explain why we have jurisdiction.
i. Count 5
First, we must consider “whether Count 5 of the amended
complaint has been resolved.” In Count 5 of its amended com-
plaint, Silver Comet alleged that the Airport Authority violated
Georgia’s Open Records Act. After a hearing, the district court cre-
ated a paperless docket entry, which indicates that the parties told
the district that they intended to file a stipulation to dismiss Count
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5 of Silver Comet’s amended complaint. But as it turns out, the
parties never filed any stipulation. Still, though, they did submit a
proposed pretrial order, which stated “that it supersedes the plead-
ings which are hereby amended to conform” to the proposed pre-
trial order. That proposed pretrial order contained both parties’
signatures, omitted any reference to Count 5 of Silver Comet’s
amended complaint, and generally reflected the parties’ under-
standing that the looming bench trial would not concern Count 5.
Although the district court never adopted that proposed pretrial
order, it did confirm that it had “read the pretrial order.” The ques-
tion, then, is whether the parties’ proposed pretrial order sufficed
to resolve Count 5 of Silver Comet’s amended complaint. We con-
clude that it did.
To begin with, we have jurisdiction over this appeal only if
the district court entered a final order. 28 U.S.C. § 1291. “A final
decision is ‘one which ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.’” CSX
Transp., Inc. v. Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000)
(quoting Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th
Cir. 1983)). When considering whether an order is final, “we take
a ‘functional approach, looking not to the form of the district
court’s order, but to its actual effect.’” Thomas v. Blue Cross &
Blue Shield Ass’n, 594 F.3d 823, 829 (11th Cir. 2010) (quoting Bir-
mingham Fire Fighters Ass’n 117 v. Jefferson County, 280 F.3d
1289, 1293 (11th Cir. 2002)).
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21-12906 Opinion of the Court 23
The parties’ failure to file a stipulation of dismissal for Count
5 is irrelevant to our analysis of this jurisdictional question. Even
if the parties had filed a stipulation to dismiss Count 5 of Silver
Comet’s amended complaint, that filing would not have resolved
the claim. A party (like Silver Comet) that wishes to dismiss a claim
(rather than an entire action) must do so by amending the com-
plaint under Rule 15(a) rather than by filing a stipulation of dismis-
sal under Rule 41. See Campbell v. Altec Indus., Inc., 605 F.3d 839,
841 n.1 (11th Cir. 2010) (quoting Klay v. United Healthgroup, Inc.,
376 F.3d 1092, 1106 (11th Cir. 2004)).
On that score, Silver Comet effectively amended its com-
plaint to drop Count 5. Under Rule 15(a), “a party may amend its
pleading only with the opposing party’s written consent or the
court’s leave.” FED. R. CIV. P. 15(a)(2). 4 Here, Silver Comet ob-
tained the Airport Authority’s consent to drop Count 5 when both
parties signed the proposed pretrial order, which reflected their
shared understanding that that the looming bench trial would not
concern Count 5. Cf. Olmstead v. Taco Bell Corp., 141 F.3d 1457,
1461–62 (11th Cir. 1998) (affirming the district court’s ruling that a
plaintiff abandoned its claim under 42 U.S.C. 1981(a) when “the
4 A party may also amend its pleadings once as a matter of course within 21
days of serving it, unless the pleading requires a response, in which case the
party may amend as a matter of course 21 days after service of the responsive
pleading or “21 days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.” FED. R. CIV. P. 15(a)(1). However, that provision is not
implicated here.
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21-12906 Opinion of the Court 24
pretrial stipulation [did] not reference § 1981(a) at any point.”).
That proposed pretrial order also provided “that it supersedes the
pleadings which are hereby amended to conform” to the proposed
pretrial order. See State Treasurer of State of Michigan v. Barry,
168 F.3d 8, 9–10 (11th Cir. 1999) (“Because a pretrial order super-
sedes the pleadings, the pretrial order had the effect of eliminating
the remaining [c]ounts … in Plaintiff’s complaint.”).
That amendment, coupled with the parties’ statement to the
district court that they intended to dismiss Count 5 of the com-
plaint, operated as the functional equivalent of a dismissal of Count
5. 5 Indeed, we said as much in Campbell, where we held that a
district court’s order granting a Rule 51(a) motion, “coupled with
the” plaintiff’s “announcement on the record” that it would aban-
don that claim, “operated as the functional equivalent of a dismissal
. . . turning the district court’s summary judgment order into a final
judgment.” 605 F.3d at 841 n.1. In the same way, the parties’ an-
nouncement to the district court that they intended to dismiss
Count 5, coupled with their proposed pretrial order, which effec-
tively amended the complaint to eliminate Count 5, suffices to es-
tablish that Count 5 has been resolved.
5 The district court entered a final judgment after the bench trial. Whether
the parties’ dismissal was with or without prejudice is therefore irrelevant for
finality purposes. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1265–66 (11th Cir.
1999) (holding that there was a final judgment when the plaintiff dismissed its
claim “without prejudice before the district court entered the order granting
summary judgment and entered a final judgment.”).
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21-12906 Opinion of the Court 25
ii. Count 4
The second jurisdictional question we carried with this case
is “whether the stipulation of dismissal of Count 4 was effective,
given that the parties purported to dismiss a single claim instead of
the entire action.” Unlike their handling of Count 5, the parties did
file a joint stipulation dismissing Count 4 of Silver Comet’s
amended complaint. When the district court subsequently entered
its order granting partial summary judgement, it acknowledged the
parties’ joint stipulation of dismissal for Count 4 and added, “If the
record otherwise does not contain a document of dismissal, the
Court herein dismisses [Count 4] without prejudice.”
Even though the parties’ Rule 41(a) motions and stipulation
did not effectively dismiss Count 4, the district court cured that de-
fect. It’s true that litigants cannot use Rule 41 to dismiss a single
claim. See Campbell, 605 F.3d at 841 n.1. But the district court
dismissed Count 4 in any case, so whether the stipulation of dismis-
sal of Count 4 was effective is beside the point. Because the district
court dismissed Count 4 without prejudice before entering its final
judgment, Count 4 has been resolved. See Schoenfeld, 168 F.3d at
1265–66.
Having assured ourselves that we have jurisdiction over this
appeal, we will now turn to the merits of the issues raised by Silver
Comet.
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21-12906 Opinion of the Court 26
B. Merits
Summary judgment is proper only when “there is no genu-
ine dispute as to any material fact” and the prevailing party “is en-
titled to judgment as a matter of law.” FED. R. CIV. P. 56(a). When
passing upon a motion for summary judgment, a district court
must take the facts in the light most favorable to the nonmoving
party, drawing all reasonable inferences therefrom in that party’s
favor. E.g., Westchester Gen. Hosp. v. Evanston Ins. Co., 48 F.4th
1298, 1301–02 (11th Cir. 2022) (citation omitted). We must do the
same because we review de novo a district court’s order granting
summary judgment. Id.On appeal from a judgment after a bench trial, we review
the district court’s conclusions of law, including its application of
the law to the facts, de novo, while evaluating its finding of facts
under the clear-error standard. U.S. Commodity Futures Trading
Comm’n v. S. Tr. Metals, Inc., 894 F.3d 1313, 1322 (11th Cir. 2018)
(citations omitted).
Silver Comet argues that the district court erred in four
ways. First, Silver Comet asserts that the district court erred by
finding, after a bench trial, that the Airport Authority could termi-
nate the Lease Option Agreement. Second, Silver Comet contends
that the district court erred by granting summary judgment on Sil-
ver Comet’s claim that the Airport Authority breached the Lease
Option Agreement’s representations-and-warranties provisions.
Third, Silver Comet argues that the district court erred by granting
summary judgment on Silver Comet’s claim that the Airport
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21-12906 Opinion of the Court 27
Authority breached the Airport Use Agreement’s indemnification
provision. Finally, Silver Comet argues that the district court erred
by finding, after a bench trial, that Silver Comet never exercised its
expansion rights under the Airport Use Agreement and, as a result,
that the Airport Authority could terminate the Airport Use Agree-
ment.
After addressing and rejecting each argument in turn, we af-
firm the district court’s order granting partial summary judgment
in the Airport Authority’s favor and its entry of judgment after the
bench trial.
i. Termination of Lease Option Agreement
We start with Silver Comet’s argument that the district
court clearly erred by finding, after a bench trial, that the Airport
Authority could terminate the Lease Option Agreement. The Air-
port Authority could terminate the Lease Option Agreement if it
in good faith and reasonably determined that Silver Comet had
“not commenced to use reasonable efforts” to market the option
property after receiving the marketing notice.
The district court concluded both that (1) the Airport Au-
thority decided to terminate the Lease Option Agreement in good
faith; and (2) the Airport Authority reasonably determined that Sil-
ver Comet had not commenced using reasonable efforts to market
the option property after receiving the marketing notice. Alleging
error, Silver Comet cites Tibbitt’s failure to transmit Silver Comet’s
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21-12906 Opinion of the Court 28
three-page PowerPoint presentation to the rest of the Airport Au-
thority’s Board.
Silver Comet’s two-paragraph argument misses the mark
because the PowerPoint presentation contained information that
the Airport Authority already knew. The three-page PowerPoint
presentation documented all Silver Comet’s marketing efforts
since 2012. Yet Tibbitts “was briefed very thoroughly on every-
thing that happened basically since 2012.” The problem, he ex-
plained, was that the Airport Authority “felt there was no market-
ing taking place” after 2016. And the PowerPoint presentation
failed to address that concern. So even if Tibbitts had transmitted
that PowerPoint to the rest of the Airport Authority’s Board, its
content would not be helpful for determining whether Silver
Comet had commenced using reasonable efforts to market the op-
tion property after receiving the marketing notice in December
2016.
For that reason, Tibbitts’s failure to transmit the Power-
Point presentation to the rest of the Airport Authority’s Board does
not evince a lack of good faith. Under Georgia law, good faith re-
quires, among other things, “further investigation” when the
“known circumstances” so require. Riggins v. Deutsche Bank Nat’l
Tr. Co., 708 S.E.2d 266, 269 (Ga. 2011) (quoting Anderson v. Little
& Davenport Funeral Home, Inc., 251 S.E.2d 250, 252 (Ga. 1978));
see also Drs. Hosp. of Augusta, LLC v. Alicea, 788 S.E.2d 392, 403
(Ga. 2016) (citation omitted). Because the Airport Authority’s
Board already knew the facts conveyed by the PowerPoint
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21-12906 Opinion of the Court 29
presentation, there was no need for the Airport Authority’s Board
to further investigate that PowerPoint presentation.
Putting the PowerPoint presentation aside, the record more
than supports the district court’s conclusion that the Airport Au-
thority reasonably and in good faith determined that Silver Comet
did not start marketing the option property after receiving the mar-
keting notice and that it terminated the Lease Option Agreement.
Indeed, after receiving the marketing notice, Silver Comet wrote
the Airport Authority a letter and acknowledged that it had
stopped marketing the property.
And Silver Comet’s actions support the conclusion that it
had ceased marketing the option property by 2016. Reichin testi-
fied that while he attended several trade shows in 2015, he attended
none in 2017 or 2018. In the same vein, Reichin testified that
though he traded emails with prospective companies in 2015, he
failed to email prospective companies in 2017 or 2018. Reichin also
admitted that, in his view, Paulding County’s actions from 2015 on
effectively created a “blockade” on Silver Comet’s ability to do an-
ything at the Airport. And the Airport Authority, according to Tib-
bitts, got the message loud and clear: “They [the Airport Author-
ity] had become concerned that because of the situation that was
in Paulding County at that time, that the marketing had ceased.”
In short, Silver Comet’s argument fails to show that the dis-
trict court clearly erred by finding that the Airport Authority rea-
sonably and in good faith terminated the Lease Option Agreement.
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21-12906 Opinion of the Court 30
ii. Breach of Warranties in Lease Option Agreement
Our conclusion that the district court did not clearly err by
finding that the Airport Authority could terminate the Lease Op-
tion Agreement forecloses Silver Comet’s second argument related
to the Lease Option Agreement. Here, Silver Comet contends that
the district court erred by granting summary judgment on its claim
that the Airport Authority breached the Lease Option Agreement’s
representations-and-warranties provisions.
That claim turns on two of the representations and warran-
ties. First, the Airport Authority represented and warranted that
there were “no leases, licenses, or occupancy rights, or any con-
tracts, option or other agreements of any kind (including any pur-
chase or lease options), affecting the Option Property.” Second,
the Airport Authority promised to “notify Silver Comet” about any
“notice” that it received, which “relates directly or indirectly” to
any of the representations and warranties. The Airport Use Agree-
ment required the Airport Authority to deliver such notice no
“later than the date that Silver Comet exercises the Lease Option.”
Silver Comet reads those provisions broadly. In its view,
those provisions saddled the Airport Authority with “a continuing
duty to notify Silver Comet of any agreement of any kind, includ-
ing an informal agreement.” On that basis, Silver Comet argues
that the Airport Authority breached the representations-and-war-
ranties provisions by failing to disclose its “agreements” (1) to meet
with Georgia officials in September 2018 to discuss the location of
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21-12906 Opinion of the Court 31
a proposed aviation academy and (2) to obtain an environmental
assessment on the proposed location.
The district court rejected Silver Comet’s interpretation,
concluding that the representations-and-warranties provisions did
not require the Airport Authority to disclose informal agreements
such as “discussions or negotiations involving the option prop-
erty.” As a result, the district court granted summary judgment on
Silver Comet’s claim that the Airport Authority breached the Lease
Option Agreement’s representations-and-warranties provisions.
Silver Comet now argues that the district court’s interpretation
was erroneous.
But even granting Silver Comet’s broad reading of the rep-
resentations-and-warranties provisions, Silver Comet’s claim that
the Airport Authority breached those provisions still fails. That’s
so because Silver Comet claims that the Airport Authority
breached those provisions by entering two agreements after the
Airport Authority already terminated the Lease Option Agree-
ment. First, the Airport Authority met with Georgia officials on
September 26, almost two weeks after terminating the Lease Op-
tion Agreement. Second, the Airport Authority’s agreement to ob-
tain an environmental assessment occurred just days after the Air-
port Authority’s September 26 meeting with Georgia officials. But
a party cannot breach an agreement after the agreement has al-
ready been terminated. So even if the district court misinterpreted
the representation-and-warranties provisions, it does not follow
that the Airport Authority breached those provisions.
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21-12906 Opinion of the Court 32
Yet, Silver Comet argues that because it timely disputed the
Airport Authority’s notice of termination pursuant to the terms of
the Lease Option Agreement, the Airport Authority’s obligations
under the representations and warranties survived until a court de-
termined that the September 13 termination notice was valid. We
reject the implication that the contract allowed Silver Comet to
unilaterally extend the Airport Authority’s obligations past a valid
termination merely by filing an ultimately meritless dispute. Such
a reading would dramatically undermine the utility of the early ter-
mination provision, and Georgia law requires contract interpreta-
tion “to give the greatest effect possible to all provisions rather than
to leave any part of the contract unreasonable or having no effect.”
Vaughn, Coltrane & Assocs. V. Van horn Const., Inc., 563 S.E.2d
548, 550 (Ga. Ct. App. 2002) (quoting Sofran Peachtree City v.
Peachtree City Holdings, 550 S.E.2d 429, 431 (Ga. Ct. App. 2001)).
We therefore affirm the district court’s entry of judgment
on Silver Comet’s claim that the Airport Authority breached the
Lease Option Agreement’s representations-and-warranties provi-
sions.
iii. Indemnification Under the Airport Use Agreement
Silver Comet’s third argument stems from its claim that the
Airport Authority breached the Airport Use Agreement by refusing
to indemnify Silver Comet for expenses it incurred when applying
for the Part 139 certification. The Airport Use Agreement required
the Airport Authority to apply for a Part 139 certification with the
FAA. The Airport Use Agreement also required the Airport
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21-12906 Opinion of the Court 33
Authority to “use its best efforts to obtain such Certification, in-
cluding without limitation, making all financially feasible improve-
ments . . . necessary to obtain such Certification . . . .” The same
provision then required the Airport Authority to “indemnify and
hold Tenant [i.e., Silver Comet] harmless from and against any and
all claims, actions, damages, liability and expense in connection
with the [Airport Authority’s] application for Certification hereun-
der.”
The district court granted summary judgment on this claim
after concluding that the Airport Use Agreement’s indemnity pro-
vision did not cover the expenses for which Silver Comet sought
indemnification. The district court offered three reasons to sup-
port that conclusion. First, the district court held that the indem-
nification provision covers only those expenses paid for by Silver
Comet. And there is no dispute that Silver Comet’s parent com-
pany, Propeller, paid for all the expenses for which Silver Comet
now seeks indemnification.
Second, the district court held that even if the Airport Use
Agreement requires the Airport Authority to indemnify Silver
Comet against those expenses paid for by Propeller, the indemnity
provision does not cover expenses Silver Comet incurred when ex-
panding the airport’s taxiway. Those expenses, the district court
explained, fall under an exception to the indemnification provision
that applies to improvement payments.
Finally, the district court held that even if the Airport Use
Agreement requires the Airport Authority to indemnify Silver
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21-12906 Opinion of the Court 34
Comet against those expenses paid for by Propeller, “the indemni-
fication provision does not include the phrase ‘attorney’s fees,’ so
[Silver Comet] is unable to recover its fees as such.”
We agree with the district court that the indemnity provi-
sion covers only those expenses paid for by Silver Comet, not those
paid for by its parent company, Propeller. That obviates the need
for us to address the other two issues. Still, though, we also agree
with the district court’s alternative holdings that, in any case, the
indemnity provision does not cover Silver Comet’s legal fees or
moneys spent in connection with the taxiway project. We there-
fore affirm the district court’s order granting summary judgment.
a. Expenses Paid by Propeller.
The district court concluded that the Airport Use Agree-
ment’s indemnity provision did not require the Airport Authority
to indemnify Silver Comet against expenses paid for by its parent
company, Propeller. That provision, explained the district court,
“does not require indemnification for expenses incurred by anyone
other than ‘Tenant.’” “And,” the district court continued, “the
‘Tenant’ is [Silver Comet] and [Silver Comet] only.” We agree.
The indemnity provision in the Airport Use Agreement pro-
vides that the Airport Authority “shall indemnify and hold Tenant
harmless from and against any and all … expense[s]” in connection
with the Airport Authority’s application for a Part 139 certification.
And the first line of the Agreement defines Tenant as “Silver Comet
Terminal Partners, LLC,” not Propeller. If the parties intended for
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21-12906 Opinion of the Court 35
expenses paid by Propeller to be covered, they could have defined
“Tenant” more broadly or written the contract to provide indem-
nification for Tenant and its parent company.
Georgia law forbids requiring the Airport Authority to in-
demnify a party it did not promise to indemnify. See Boafo v.
Hosp. Corp. of Am., 338 S.E.2d 477, 478 (Ga. Ct. App. 1985) (rea-
soning that certain transactions between a parent and subsidiary
“do not alone or all together justify disregarding the separate cor-
porate entity which the law has created”). In Peara v. Atlanta
Newspapers, Inc., 169 S.E.2d 670 (Ga. Ct. App. 1969), the Court of
Appeals of Georgia confronted a claim for indemnification under a
suretyship contract. The surety agreement guaranteed that the de-
fendant would indemnify “World Wide Computer Training”—a
division of Computer Services Corporation—for advertising credit
extended to World Wide. Id. at 671. But when the plaintiff sought
payment under the agreement for advertising credit extended to
Computer Services, the defendant refused to pay. Id. The Court
of Appeals held that the defendant “did not agree to indemnify for
credit extended to Computer Services Corp.,” even though Com-
puter Services included the indemnitee, World Wide, as one of its
divisions. Id.Here, as in Peara, indemnity under Georgia law may not be
enforced “by implication or interpretation.” Id. Indeed, “under
Georgia law, the words of a contract of indemnification must be
construed strictly against the indemnitee and every presumption is
against an intention to indemnify.” Firmani v. Dar-Court Builders,
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21-12906 Opinion of the Court 36
LLC, 793 S.E.2d 596, 605 (Ga. Ct. App. 2016) (alterations adopted)
(quoting Svc. Merchandise Co. v. Hunter Fan Co., 617 S.E.2d 235,
237–38 (Ga. Ct. App. 2005)). Applying that rule of law, as we are
Erie-bound to do with respect to Silver Comet’s state law contract
claims, it would be improper to infer that the indemnification pro-
vision is meant to cover expenses paid by anyone other than Silver
Comet, especially considering that the contract could have (but did
not) name anyone other than Silver Comet as the indemnitee.
If the parties intended for expenses initially paid by Propeller
to be covered, they could have defined “Tenant” more broadly or
written the contract to provide indemnification for Tenant and its
parent company. Such language is common and we have ad-
dressed similar clauses in previous cases. See, e.g., Nat’l R.R. Pas-
senger Corp. (Amtrak) v. Rountree Transp. & Rigging, Inc., 422
F.3d 1275, 1284 (11th Cir. 2005) (analyzing an indemnification
clause that guaranteed payment to, among others, “any parent,
subsidiary, or affiliated system companies of [CSX]” (emphasis
added)); Yellow Pages Photos, Inc. v. YP, LLC, 856 F. App’x 846,
855 (11th Cir. 2021) (discussing clause that required indemnifica-
tion of a company “and its parents, subsidiaries, and commonly
owned or controlled affiliates and their respective officers, direc-
tors and employees” (emphasis added) (other emphasis omitted)).
But the parties did not strike such a bargain here. Instead, the Au-
thority agreed to indemnify only Silver Comet.
Silver Comet resists this plain-language-driven conclusion
by arguing that the entity that cut the check to cover the expenses
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21-12906 Opinion of the Court 37
is irrelevant, and what matters is that Silver Comet “incurred” the
expenses from an accounting perspective. In support of this argu-
ment, Silver Comet cites Reichin’s declaration, which states that
“[w]hile checks were cut by Propeller Airports to pay expenses on
behalf of Silver Comet Terminal Partners, those expenses and pay-
ments were properly allocated by journal entries to Silver Comet
Terminal Partners.” Silver Comet also cites an IRS Revenue Rul-
ing, which interprets the tax code to allow subsidiaries to claim tax
deductions for expenses paid by its parent on its behalf. See Rev.
Rul. 84-68, 1984-19 I.R.B. 5, 1984-1 C.B. 31, 1984 WL 262636. From
that IRS Revenue Ruling and other sources of federal law, Silver
Comet discerns a “common-sense rule,” under which a subsidiary
incurs an expense even when its parent pays that expense. Silver
Comet argues that because these expenses “belonged” to Silver
Comet in an accounting sense, it can be indemnified for the
amount of those expenses, even if there is no evidence that Silver
Comet has ever or will ever part with any of its own money to
cover the expenses. 6 See Reeves v. Mohawk Factoring, Inc., 583
6 At oral argument, Silver Comet’s counsel contended that when Propeller
paid Silver Comet’s expenses “you are either going to have an inter-company
loan or you are going to have a capital contribution” from Propeller to Silver
Comet. When pressed, however, counsel conceded that there is no evidence
in the record (such as a loan agreement, etc.) to that effect. See Oral Argument
at 7:50–9:00. Thus, there is no evidence that Silver Comet is obliged to pay
Propeller back for the money Propeller paid on its behalf.
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21-12906 Opinion of the Court 38
S.E.2d 487, 488 (Ga. Ct. App. 2003) (“A subsidiary is generally con-
sidered under law to be a separate legal entity form its parent.”).
The problem with this argument is that even if Silver Comet
“incurred” the expenses as an accounting matter, 7 the Airport Use
Agreement is at best ambiguous as to whether an expense incurred
by Silver Comet but paid by another entity is subject to indemnifi-
cation. Indeed, it is noteworthy that, although the indemnification
provision holds Silver Comet “harmless from and against any and
all … expense,” it does not use either of the words “incur” or
“paid.” And given that lack of a clear contractual right to indemni-
fication, Georgia law requires us to construe the indemnification
provision narrowly and against indemnity. See, e.g., Peara, 169
S.E.2d at 671; Firmani, 793 S.E.2d at 605.
Not only that, but the Airport Use Agreement contract also
entitled Silver Comet to assign its lease and any interest thereun-
der, meaning that Silver Comet could have assigned its rights un-
der the indemnity provision to Propeller. Had Silver Comet as-
signed its rights to Propeller, then “Tenant” (the party who, under
the indemnity provision, “shall” be indemnified by the Airport
7 The fact that Propeller, not Silver Comet, issued the 1099 tax forms for many
of the expenses suggests that Propeller was the entity that “incurred” the ex-
penses. See 26 C.F.R. § 1.6041-6(a) (“The name and address of the person
making the payment and the name and address of the recipient of the payment
shall be stated on Form 1099.”).
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21-12906 Opinion of the Court 39
Authority) would have included Propeller. But Silver Comet did
not assign its rights to Propeller.
We therefore affirm the district court’s entry of judgment
on Silver Comet’s claim that the Airport Authority breached the
Airport Use Agreement’s indemnification provision.
b. Attorney’s Fees
As an alternative ground for granting summary judgment on
Silver Comet’s claim under the indemnity provision, the district
court found that the Airport Use Agreement did not require the
Airport Authority to indemnify Silver Comet for its attorney’s fees.
We agree.
Under Georgia law, “[t]he general rule is that attorneys fees
are not included in the term ‘costs’ or ‘expenses’ in the absence of
some statutory provision, rule of court, or by contract of the par-
ties.” Bowers v. Fulton County, 183 S.E.2d 347, 348 (Ga. 1971). 8
8 Silver Comet points to cases where this Court, applying Georgia law, held
that an indemnity provision encompassed legal fees based on the phrases “any
and all loss, cost, damage and expense” and “all loss, damage, and expense.”
Brown v. Seaboard Coast Line R.R. Co., 554 F.2d 1299, 1304 (5th Cir. 1977);
see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en
banc) (holding that the decisions of the Former Fifth Circuit handed down be-
fore September 30, 1981, are binding precedent on the Eleventh Circuit). But
the Georgia Court of Appeals has since rejected that interpretation, explaining
that “it overlooked the long-standing Georgia rule that attorney fees cannot
be recovered in the absence of an express contract provision” and that it in-
stead turned on “a federal rule,” under which courts interpret “indemnity
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21-12906 Opinion of the Court 40
For that reason, an indemnitee may recover legal fees only when
“the indemnity provision . . . expressly provide[s] for attorneys
fees,” Doss & Assocs., 754 S.E.2d at 98 (citing Bowers, 183 S.E.2d
at 348); see also George L. Smith II Ga. World Cong. Ctr. Auth. v.
Miller Brewing Co., 566 S.E.2d 361, 363 (Ga. Ct. App. 2002) (same).
Here, the indemnity provision does not expressly provide for attor-
ney’s fees. So the Airport Authority need not indemnify Silver
Comet for them.
Contending otherwise, Silver Comet points to an exception
to the general rule that an indemnity provision does not provide
for legal fees absent an express provision to the contrary. Under
this “exception to” the “general rule against the recovery of attor-
ney fees and costs[,] ‘attorney fees and expenses of litigation in an
underlying action are recoverable as real damages incurred as the
result of defendants’ malfeasance or misfeasance.” Etowah Env’t
Grp., LLC v. Walsh, 774 S.E.2d 220, 228 (Ga. Ct. App. 2015) (quot-
ing Atlanta Woman’s Club v. Washburne, 450 S.E.2d 239, 241 (Ga.
Ct. App. 1994)). 9 This exception “permits a plaintiff to recover all
agreements broadly with regard to the type of damages recoverable.” Doss &
Assocs. v. First Am. Title Ins. Co., 754 S.E.2d 85, 98 n.17 (Ga. Ct. App. 2013).
9 The Airport Authority argues that Silver Comet failed to raise this argument
in the district court. We disagree. Silver Comet raised a very similar argument
in the district court, citing many of the same cases and statutes that it does on
appeal.
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21-12906 Opinion of the Court 41
losses flowing from a defendant’s alleged misfeasance or malfea-
sance,” Id.Although Silver Comet invokes that exception here, it ig-
nores that the exception applies only when the legal fees flow from
the defendants’ malfeasance or misfeasance. But see, e.g., Marcoux
v. Fields, 394 S.E.2d 361, 363 (Ga. Ct. App. 1990) (explaining that
attorney’s fees and expenses are recoverable as real damages “if
they are the proximate result of” the “defendants’ malfeasance or
misfeasance.” (citation omitted)). And Silver Comet has not
pointed to malfeasance or misfeasance that caused its expenditure
of attorney’s fees and other legal expenses. As a result, Silver
Comet has failed to establish that the exception applies.
We therefore apply the general rule and find that the indem-
nity provision did not require the Airport Authority to indemnify
Silver Comet for its attorney’s fees.
c. Taxiway Expenses
The district court also found, in the alternative, that the Air-
port Use Agreement did not require the Airport Authority to in-
demnify Silver Comet for expenses paid in connection with a pro-
ject that expanded the Airport’s taxiway. The Airport Use Agree-
ment’s indemnity provision precedes a provision that discusses so-
called “Improvement Payments.” That provision states that Silver
Comet had the “right, at its sole and absolute discretion, to pay for
all the improvements . . . to Paulding Northwest Atlanta Airport
necessary to obtain the [Part 139] Certification.” The
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21-12906 Opinion of the Court 42
improvement-payment provision supplies a mechanism for Silver
Comet to seek reimbursement from the Airport Authority, making
clear that improvement payments are separate and distinct from
the expenses covered by the indemnity provision.
Before the district court, Silver Comet conceded that the
“taxiway project was necessary to accommodate certain commer-
cial passenger planes.” Of course, a Part 139 certification is also
necessary to accommodate commercial passenger service and
Smith testified to this fact at his deposition. See 14 CFR § 139, et
seq. So Silver Comet effectively conceded that the moneys it paid
in connection with the taxiway project were improvement pay-
ments.
We therefore decline to disturb the district court’s finding
that the indemnity provision does not require the Airport Author-
ity to indemnify Silver Comet for the moneys it spent in connection
with the taxiway project. 10
iv. Termination of Airport Use Agreement
Silver Comet’s final argument assigns error to the district
court’s finding that the Airport Authority could terminate the
10 Silver Comet now argues that a separate agreement, called the Bond Agree-
ment, superseded the Airport Use Agreement’s indemnity and improvement-
payment provisions with respect to Silver Comet’s taxiway expansion ex-
penses. Silver Comet did not make this argument before the district court. So
we will not address it here. See, e.g., CSX Transp., Inc. v. Gen. Mills, Inc., 846
F.3d 1333, 1336–37 (11th Cir. 2017).
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21-12906 Opinion of the Court 43
Airport Use Agreement on December 7, 2018. As the district court
explained, the Airport Authority was contractually entitled “to ter-
minate the [Airport Use] Agreement if two conditions were met:
(1) there was no commercial passenger service at the airport, and
(2) [Silver Comet] had not exercised its option to lease the entire
terminal building.” There’s no question that the first condition was
met—that is, “commercial passenger service was not instituted at
the Paulding County Airport.” So the only issue the district court
resolved was whether Silver Comet “in fact exercised its option to
lease the building.”
Under the Airport Use Agreement, Silver Comet’s option to
expand its lease to the entire terminal building was “exercisable by
written notice to” the Airport Authority. The contract also pro-
vided that “the parties shall enter into an amendment” to reflect
Silver Comet’s expansion within fifteen business days after the Air-
port Authority receives Silver Comet’s notice. Even though Silver
Comet supplied the Airport Authority with notice of its intent to
exercise that option, the district court found that Silver Comet did
not exercise that option.
On appeal, Silver Comet argues that the district court’s find-
ing was erroneous because Silver Comet exercised its option to
lease the entire building when it provided notice of its intent to ex-
ercise that option. “All that was required to exercise the option was
written notice,” avers Silver Comet. And, in its view, Silver Comet
provided that written notice on June 29, 2018, when it sent a letter
to the Airport Authority notifying it of Silver Comet’s “intent to
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21-12906 Opinion of the Court 44
exercise” its expansion rights under the Airport Use Agreement.
“This exercise was memorialized in writing on September 5, 2018,”
Silver Comet adds, referencing a second letter, in which it asked
the Airport Authority “to amend the Lease to reflect Silver Comet’s
exercise of its expansion option to lease the Terminal Building.”
But the problem with this argument is that the Airport Au-
thority repeatedly sought to “enter into an amendment” to memo-
rialize Silver Comet’s expansion, while Silver Comet did every-
thing in its power to prevent the parties from “enter[ing] into an
amendment” that reflected Silver Comet’s expansion. After Silver
Comet first notified the Airport Authority that it intended to exer-
cise its expansion rights to occupy the entire terminal building, the
Airport Authority responded, indicating its readiness to “enter into
an amendment” to preserve Silver Comet’s expansion rights, stat-
ing that it was prepared to vacate the entire building, and asking
Silver Comet to forward its rent payment for the first month by
September 1, 2018. But Silver Comet didn’t respond until Septem-
ber 5, 2018.
And even then, Silver Comet did not pay the first month’s
rent. Instead, it asked the Airport Authority to “amend the Lease
to reflect . . . Silver Comet’s exercise of its expansion option to lease
the Terminal Building.” The Airport Authority again complied,
providing Silver Comet with a draft lease less than two weeks later.
Rather than signing that lease, Silver Comet asked the Airport Au-
thority to send a new one with two changes. Again, the Airport
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21-12906 Opinion of the Court 45
Authority complied and provided a new draft lease that incorpo-
rated Silver Comet’s requested changes.
One of those changes pushed the amendment’s effective
date back from November 1, 2018, to December 1, 2018. But Silver
Comet again asked the Airport Authority to place that effective
date “on hold” after filing this lawsuit. That request proved too
much when the Airport Authority rejected it and told Silver Comet
that the Airport Authority would assume that Silver Comet did not
intend to lease the terminal building unless the Airport Authority
received “an executed lease and payment” before December 1,
2018. Silver Comet never sent the Airport Authority an executed
lease or payment. So the Airport Authority then terminated the
Airport Use Agreement on December 7, 2018.
Given all this back and forth, the district court construed Sil-
ver Comet’s June 29 and September 5 letters as proving that Silver
Comet “was not yet exercising the option, but rather that it only
intended to do so at some point.”
Resisting that conclusion, Silver Comet urges us to construe
the contract in a way that would allow it to put the lease on hold
while it decided whether to exercise its expansion rights without
risking that the Airport Authority would exercise its termination
right. Indeed, Silver Comet says that “[e]ntering into an amended
lease was not” necessary for Silver Comet to exercise its expansion
rights. Yet the contract explicitly says that “the parties shall enter
into an amendment to his Lease” within “fifteen business days after
[the Airport Authority’s] receipt” of Silver Comet’s notice to
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21-12906 Opinion of the Court 46
expand its lease. And as we have explained, the Airport Authority
tried at every step of the way to enter into an amended lease.
In sum, the Airport Use Agreement speaks in mandatory ra-
ther than permissive terms when it says that “the parties shall enter
into an amendment” to reflect Silver Comet’s expansion within fif-
teen business days after the Airport Authority receives Silver
Comet’s notice. And given that Silver Comet refused to enter into
an amended lease with the Airport Authority, we agree with the
district court “that while [Silver Comet] may have planned to go
through with its exercise of the option at the time it sent the letter
to the Airport Authority, it instead chose not to do so when it de-
cided to put that decision on hold.” Put simply, the Airport Use
Agreement cannot be construed to permit Silver Comet to invoke
its expansion rights while it decided whether to exercise those
rights without risking that the Airport Authority would exercise its
termination rights.
We therefore affirm the district court’s entry of judgment
against Silver Comet on its claim that the Airport Authority could
not terminate the Airport Use Agreement.
III. Conclusion
For these reasons, we affirm the district court’s order grant-
ing summary judgment and its entry of judgment in the Airport
Authority’s favor.
AFFIRMED.
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21-12906 ROSENBAUM, J., DISSENTING 1
ROSENBAUM, Circuit Judge, Dissenting in Part:
Although I almost completely agree with the Majority Opin-
ion, I split with it on the question of whether the indemnity provi-
sion covers expenses paid by Silver Comet’s parent company, Pro-
peller Airports. In my view, the indemnity provision is broad
enough to cover expenses paid by Propeller.
The indemnity provision requires the Airport Authority to
indemnify Silver Comet “against any and all . . . expense[s] in con-
nection with” the Airport Authority’s application for a Part 139 cer-
tification (emphasis added). Because the provision covers “any and
all . . . expense[s],” it does not limit the expenses to direct ones. So
expenses charged eventually to Silver Comet qualify as a kind of
“any and all . . . expense[s].” Then the relevant question is whether
a given expense was incurred “in connection with” the Airport Au-
thority’s application for a Part 139 certification. In other words, the
mere fact that Propeller Airports initially paid an expense that Sil-
ver Comet eventually incurred does not, to my mind, disqualify
the expense from indemnification under the broad language of the
contract.
To be sure, I agree with the Majority Opinion that the in-
demnity provision covers neither Silver Comet’s legal fees, nor the
moneys Silver Comet spent in connection with the taxiway project.
Maj. Op. at 39–43. But in addition to seeking indemnification for
those expenses, Silver Comet also sought indemnification for
things like salaries, overhead, office rent, and construction costs.
The Airport Authority asks us to find that the indemnity provision
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21-12906 ROSENBAUM, J., DISSENTING 2
does not cover these expenses for a variety of reasons, none of
which the district court addressed. “Because the district court did
not address these issues,” I would “decline to do so here in the first
instance.” MSP Recovery Claims, Series LLC v. Metro. Gen. Ins.
Co., 40 F.4th 1295, 1306 (11th Cir. 2022). Instead, I would remand
for the district court to determine whether the indemnity provision
covers the remaining expenses for which Silver Comet seeks in-
demnification.
For these reasons, I would reverse the district court’s order
granting summary judgment insofar as it held that the Airport Au-
thority need not indemnify Silver Comet for expenses connected
to the Airport Authority’s Part 139 certification simply because Sil-
ver Comet’s parent company, Propeller Airports, paid for those ex-
penses. I would remand the case to the district court with instruc-
tions to determine whether the indemnity provision covers the re-
maining expenses for which Silver Comet seeks indemnification.
Because, in my view, the Majority Opinion incorrectly reaches the
opposite conclusion, I respectfully dissent.