                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                            No. 10-14911                  JUNE 5, 2012
                                      ________________________             JOHN LEY
                                                                            CLERK
                                D.C. Docket No. 1:10-cv-01509-RLV

OMV ASSOCIATES LIMITED PARTNERSHIP,

                                                                    Plaintiff - Appellant,

                                               versus

TRIMONT REAL ESTATE ADVISORS, INC.,
TDA-LB-UBS-2000-C5, LLC,

llllllllllllllllllllllllllllllllllllllll                            Defendants - Appellees.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                            (June 5, 2012)

Before EDMONDSON, KRAVITCH and FARRIS,* Circuit Judges.

PER CURIAM:

         OMV Associates, L.P. (OMV) sued TDA-LB-UBS 2000-C5, LLC (TDA), a


         *
         Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
special purpose entity, and TriMont Real Estate Advisors (collectively, TriMont)

for breach of contract. At issue in this appeal is whether certain securities used as

collateral in the transaction that is the source of the dispute between the parties

unambiguously came ultimately to rest with TDA under the several agreements

entered into to accomplish the transaction. The district court held that they did,

and, for that reason, dismissed OMV’s complaint. We agree and therefore affirm.

                                          I.

      In 2000, OMV obtained a $70 million loan secured by an office building

that OMV owned. Six years later, OMV sought to obtain a release of the

mortgage on its building. The 2000 loan agreement, however, included

prepayment penalties, and so OMV arranged a defeasance transaction that would

permit it to refinance the loan while avoiding the penalties. To do so, OMV

enlisted the services of TriMont. TriMont prepared, and the parties signed, an

Engagement Letter detailing the services TriMont would provide and outlining the

strategy for the transaction, which would entail a series of contracts and would

involve TriMont’s creation of TDA especially for purposes of this transaction.

      In the defeasance transaction, rather than paying off the loan balance early

with the proceeds of a refinancing, OMV would substitute both the collateral

securing the loan and itself as the borrower, thereby avoiding the prepayment

                                           2
penalties. TDA stepped into OMV’s shoes as borrower, assuming OMV’s liability

under the loan. And, in place of the mortgage on its office building, OMV

pledged new collateral in the form of United States Treasury Securities (the

Pledged Collateral) to secure the loan.

      In the Engagement Letter, TriMont agreed to provide the following

services: “(1) Consulting services with respect to the defeasance of the Loan,

including coordinating the process with the lender and its counsel; (2) establishing

and maintaining [TDA,] the Successor Borrower . . . ; and (3) coordinating the

acquisition of the [Pledged Collateral].” In return for the consulting services,

OMV agreed to pay TriMont a $32,500 fee.

      The Engagement Letter also provided that, after TriMont created TDA,

OMV and TDA would enter into a subsequent agreement under which TDA would

assume OMV’s “obligations under the loan documents and defeasance

documents,” including “liability for any shortfall in the Pledged Collateral

Account, in the event the Securities are insufficient to make all scheduled

payments” and “liability for any Events of default under the loan documents until

the maturity date of the loan . . . .” In exchange, OMV agreed that, “to the extent

that any funds remain[ed] in the Pledged Collateral Account at the maturity date of

the Loan (as a result of inefficiencies in the portfolio of Securities, prepayments,

                                          3
etc.), such funds shall hereafter remain the property of Successor Borrower.” But

the agreement further provided that “any . . . interest income earned on cash

amounts held in the . . . account” would be shared “at a ratio of 75% to [OMV]

and 25% to [TriMont].”

       On July 24, 2006, after TriMont created TDA, coordinated the purchase of

the Pledged Collateral, and established the account into which they would be

placed, OMV, TriMont, and several other entities effectuated the defeasance

transaction through the execution of three agreements.1

       First, OMV signed a Defeasance Pledge and Security Agreement (Security

Agreement) with the Lender, Wells Fargo Bank, and Wachovia Bank (as servicer

of related agreements). OMV gave the Lender a first-priority security interest in

the securities and their proceeds as substitute collateral for the refinanced loan.

OMV warranted, among other things, that it was “the owner of good and

marketable title to all of the Pledged Collateral, subject to the terms of [a] certain

Defeasance Assignment, Assumption and Release Agreement [(Assignment

Agreement)],” but recognized that most of its obligations would cease once it

       1
          OMV attached only the Engagement Letter to its complaint, but does not challenge the
district court’s reliance upon the other agreements involved in the defeasance transaction, which
TriMont submitted along with its motion to dismiss. Although, as a general rule, deciding
whether a complaint states a claim involves examining only its allegations, when another
document is central to the plaintiff’s claims and its authenticity is not in question, we may
consider it. FindWhat Investor Gr. v. FindWhat.com, 658 F.3d 1282, 1297 n.15 (11th Cir. 2011).

                                                4
“transferred all of its right, title and interest in the Pledged Collateral in

accordance with the terms of the Defeasance Documents . . . .” Wells Fargo and

the Lender agreed, in Section 13, to return to OMV after the loan was paid or the

collateral released, “in accordance with the provisions of the Defeasance

documents, . . . such of the Pledged Collateral” in their possession “as shall not

have been sold or otherwise applied pursuant to the terms hereof . . . .” Finally,

OMV reiterated that it “may assign certain of its rights and obligations under this

Agreement to [TDA,] pursuant to [the Assignment Agreement].”

      Second, these same four parties entered into a Defeasance Account

Agreement (Account Agreement), in which Wells Fargo agreed to hold the

Pledged Collateral in a specially designated Pledged Collateral Account. In the

Account Agreement’s recitals, the parties contemplated that, “immediately upon

[its] execution,” OMV, the Lender, Wachovia, Wells Fargo, and TDA, “would

enter into [the Assignment Agreement] . . . pursuant to which, among other things,

[OMV] will transfer all of its right, title and interest in and to the Pledged

Collateral to [TDA], subject to the rights of the [Lender], and the obligations of

[Wells Fargo].” And Wells Fargo agreed, immediately “upon the assumption of

this [Account] Agreement by [TDA] pursuant to the [Assumption Agreement], to

assign to the account TDA’s tax identification number” so that “all taxable income

                                            5
earned or gain realized with respect to the Pledged Collateral shall be taxable, as

applicable, of [TDA].” OMV directed Wells Fargo, “[a]fter the contemplated

assignment by [OMV] to [TDA]” was accomplished, to hold “any amounts” in the

account until the “final payment of all amounts required under the [loan] and other

Defeasance Documents . . . , whereupon . . . any amounts remaining in the Pledged

Collateral Account shall be remitted to [TDA], within five (5) Business Days after

the final payment date under the [loan].”

      As planned, the parties entered immediately thereafter into the Assignment

Agreement, the last of the three contracts signed that day and the only one to

which TDA was a party. The parties acknowledged that OMV “ha[d] granted to

the [Lender], pursuant to [the]. . . Security Agreement,” a security interest in the

Pledged Collateral. They also acknowledged that they “ha[d] entered into the . . .

Account Agreement, pursuant to which [Wells Fargo] . . . established and will

maintain an account to hold [OMV’s] interest in the Securities and other

collateral.” After acknowledging these prior agreements, the Assignment

Agreement accomplished the central purpose of the whole transaction: placing

TDA into OMV’s shoes with respect to the collateral and loan obligations.

Specifically:

      [OMV] hereby sells, transfers and assigns to [TDA]. . . (a) the

                                            6
      Secured Obligations including, without limitation, all obligations,
      rights and duties in, to and under, and subject to the terms of, the
      Defeasance Documents and (b) all of [OMV]’s right, title and interest
      in and to the Pledged Collateral, subject to the terms of the
      Defeasance Documents and to the rights of [the Lender] and the
      obligations of [Wells Fargo] pursuant to the Security Agreement and
      the Defeasance Account Agreement.

As a condition of TDA’s assumption of OMV’s liability under the loan, OMV

“acknowledge[d] and agree[d] that all proceeds from the Pledged Collateral in

excess of amounts due under the Defeasance Documents” would be used to pay

TDA’s expenses in satisfying the loan obligations “and any balance will be the

sole property of [TDA].”

      Ultimately, for reasons not relevant on appeal, the loan was paid in full in

May 2010, six months before the predicted final repayment date. Because the loan

was paid early, over $2,000,000 in securities remained in the Pledged Collateral

Account. TriMont and TDA claimed that they were entitled to keep these excess

securities, and, when they refused to remit the securities to OMV on demand,

OMV sued for breach of contract.

      TriMont filed a motion to dismiss, arguing that the securities ultimately

came to rest with TDA under the plain language of the Assignment Agreement. In

response, OMV conceded that “[t]he Assignment Agreement did pass all right,

title and interest in the securities to TDA,” but contended that, read in conjunction

                                          7
with the other agreements, there was an ambiguity as to whether OMV retained

some right to them under a theory of equitable title or the implied duty of good

faith and fair dealing. Applying Georgia contract law, the district court reasoned

that OMV unambiguously transferred to TDA in the Assignment Agreement all of

its rights in the Pledge Collateral, including to any remainder when the transaction

concluded. That conclusion was bolstered by the Engagement Letter’s provision

that any funds remaining in the Pledged Collateral Account after repayment of the

loan would remain TDA’s property. Because the agreements between the parties

unambiguously gave TDA the right to the leftover securities, the district court

dismissed OMV’s complaint. OMV appeals.

                                          II.

      We review de novo a district court’s dismissal of a complaint for failure to

state a claim, accepting the allegations in the complaint as true. Powell v. Thomas,

643 F.3d 1300, 1302 (11th Cir. 2011). To survive a motion to dismiss, a

complaint must “state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

      Under Georgia law, an issue of contract construction is, at the outset, a




                                           8
question of law. Livoti v. Aycock, 590 S.E.2d 159, 164 (Ga. Ct. App. 2003).2 The

first step is to determine the intent of the parties based solely on the language

employed in the four corners of the document. Id. When, as here, multiple

contracts are used to effect the same transaction, the documents must be viewed as

a whole. See Maiz v. Virani, 253 F.3d 641, 568-59 (11th Cir. 2001) (applying

Georgia law). If the agreements’ language is ambiguous, the court must apply

applicable rules of construction. Livoti, 590 S.E.2d at 164. Only if the ambiguity

is not resolved by application of these rules does the agreements' interpretation

become a jury question. Id.

       Further, “[t]his Court has repeatedly held that an issue not raised in the

district court and raised for the first time in an appeal will not be considered by

this court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir.

2004) (internal quotation marks and citations omitted). A mere recitation of the



       2
          We rely upon Georgia law throughout this opinion. All of the defeasance agreements
contain choice-of-law provisions indicating that they are to be interpreted according to New York
law. But in its motion to dismiss, TriMont relied exclusively upon Georgia law even though it
discussed all of the contracts at issue in this case. OMV relied exclusively on Georgia law in
response. And, although TriMont flagged the choice-of-law issue in its reply brief to the district
court, its analysis relied, with no meaningful exceptions, on Georgia law. Likewise, both parties’
briefs on appeal essentially rely only upon Georgia law. Both parties have waived any objection
they may have had to our application of Georgia law in this case. See Daewoo Motor Am., Inc. v.
Gen. Motors Corp., 459 F.3d 1249, 1256–57 (11th Cir. 2006) (holding that choice-of-law
arguments, if not properly presented to the district court, are waived). Moreover, TriMont
concedes that, “the choice of law should not affect the outcome of this appeal.”

                                                9
factual allegations “is insufficient to preserve an argument; the argument itself

must have been made . . . .” Ledford v. Peeples, 657 F.3d 1222, 1258 (11th Cir.

2011). Nonetheless, we have exercised discretion to consider newly raised

theories under certain circumstances. Wright v. Hanna Steel Corp., 270 F.3d

1336, 1342-43 (11th Cir. 2001).

                                         III.

      After examining the series of agreements that accomplished this transaction,

the district court concluded that there was no real ambiguity about TDA’s

ownership of the leftover securities. We are inclined to agree. Our review of the

contracts reveals a sequence of agreements under which various rights and

obligations moved between five different parties in a process to accomplish a

mutually agreed-upon result. At the end of that sequential process, all right, title,

and interest in the securities rested with TDA along with all rights and obligations

under the defeasance documents “without limitation,” including the right to any

securities remaining in the account after the loan was paid off.

      In the Engagement Letter, the parties set out their plans to substitute TDA

for OMV as borrower and the securities for the mortgage on OMV’s building as

collateral. When TriMont completed the preparation, OMV gave its Lender in the

Security Agreement a security interest in the securities, but otherwise retained all

                                          10
rights to them. Next, in the Account Agreement, OMV directed Wells Fargo to

hold the collateral, to which it still retained all rights, in a designated account, but

once TDA assumed OMV’s rights and obligations in an agreement the parties

“would enter” into, to mark the securities and account as taxable property of TDA.

OMV also directed Wells Fargo after the “contemplated” assumption to hold all

funds in the account until the loan was payed off and then remit “any amounts

remaining” to TDA within 5 days.

       Finally, after acknowledging that the Security and Account Agreements had

already been consummated, OMV assigned to TDA all of its duties under the loan

as well as “without limitation [its] obligations, rights and duties in, to and under,

and subject to the terms of, the Defeasance Documents . . . .” In exchange, OMV

transferred to TDA “all of [OMV]’s right, title and interest in and to the Pledged

Collateral,” without reservation of the right to their return. And this outcome was

consistent with the Engagement Letter’s promise that “any funds remaining in the

Pledged Collateral Account,”3 including as a result of “prepayments” as turned out

       3
         OMV argues that there are internal ambiguities within the Engagement Letter with
respect to what “funds” and “Maturity date” mean. But OMV and TDA agree that language in
the subsequent defeasance documents would supersede conflicting language in the prior
Engagement Letter. See St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198 F.3d
815, 821-22 (11th Cir. 1999) (“It is well established under Georgia law that parties have a right
to change the terms of their agreement by subsequent agreements . . . .”). Thus, any ambiguity is
irrelevant in light of OMV’s subsequent grant of all rights to the securities in the Assumption
Agreement and Wells Fargo’s promise to remit “any amounts” remaining in the account within

                                               11
to be the case, would “remain the property of [TDA].”

       In response, OMV refers us to Section 13 of the Security Agreement under

which it retained the right to request from Wells Fargo and the Lender any

securities remaining in their possession at the close of the transaction. This

language, OMV contends, conflicts with the provisions in the other contracts that

entitle TDA to all rights in the Pledged Collateral. TriMont responds that all of

the agreements plainly anticipate TDA’s eventual assumption in the Assignment

Agreement of all of OMV’s rights in the Pledged Collateral and under the other

defeasance contracts, including to any leftover securities, just as the Engagement

Letter, the only agreement to which TriMont was a party, had anticipated.

       We need not address this alleged conflict because OMV waived this theory

by failing to assert it to the district court. “[A]ppellate courts generally will not

consider an issue or theory that was not raised in the district court.” Wright, 270

F.3d at 1342 (citation and internal quotation marks omitted). In their motions to

dismiss, TriMont and TDA referred extensively to the contract language which

provided that all funds in the securities account, except interest income, would

become the property of TDA when the loan was paid. And they argued that, to

plead facts adequate to state a breach of contract claim based upon TDA’s


five days after “final payment of all amounts required under the [loan] . . . .”

                                                 12
retention of the securities, OMV had to point to “some provision” within the

agreements comprising the transaction “entitling [OMV] to a return of the

securities . . . .” OMV’s response mentioned the Security Agreement only once, in

a list of the titles of each of the contracts. Even that scant reference was simply

part of OMV’s contention that it was not absolutely clear that it retained no

equitable interest, by analogy to trusts and mortgages — a contention markedly

different from that made to us. Nowhere in OMV’s response did OMV direct the

district court’s attention to the language upon which its argument on appeal

hinges. In fact, OMV conceded in its response that the Assignment Agreement

“pass[ed] all right title and interest in the securities to TDA . . . .”

       As a general rule, we are reluctant to reverse a district court for reasons that

it never heard. And OMV has given us no persuasive reason to do so in this case.

       OMV contends it has not waived its argument because it told the district

court that the agreements were ambiguous when read together. That is true, but it

is not sufficient.4 District courts are under no obligation to distill every potential


       4
         OMV’s reliance upon SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F.3d 1334
(11th Cir. 2010), is misplaced. There, we considered “nearly identical language” from an
agreement that had been elsewhere relied upon by the party raising it on appeal, that simply
confirmed the theory actually asserted to the district court. Id. at 1338. And we did so only for
those “narrow reasons[] and for the sake of completeness . . . .” Id. That is very different from
OMV’s reliance on purportedly conflicting language never mentioned to the district court to
support a theory cut from whole cloth on appeal.

                                                13
argument in favor of a counseled party’s position. Resolution Trust Corp. v.

Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (en banc). This is especially so

when, as here, doing so would require combing through well over one-hundred

pages of contractual documents to conjure support for an unarticulated theory

related only at the highest level of abstraction to a party’s contentions. OMV

never pointed the district court to any language that conflicted with the provisions

that TriMont claimed entitled TDA to the excess securities. Instead, it relied upon

conceptions of equitable title derived from trust and mortgage law and contended

that the clauses TriMont relied upon did not indisputably deprive OMV of such

title. That was not adequate to preserve the much different theory it advances on

appeal.5

       OMV also argues that, even if it waived its argument about the Security

Agreement, we may nonetheless consider it for the first time on appeal. We may,


       5
          Because Georgia law requires that a court look to “the whole contract . . . in arriving at
the construction of any part,” O.C.G.A. § 13-2-2(4), OMV argues that this court “cannot ignore
conflicting provisions . . . regardless of whether or how they were” argued to the district court.
In essence, OMV contends a party may never waive an argument based upon a contractual
provision because contract construction looks to the whole contract. But OMV cites no authority
for this proposition and it is plainly not the law. See Bridge Capital Investors, II v. Susquehanna
Radio Corp., 458 F.3d 1212, 1217 (11th Cir. 2006) (holding that, under the law of this court, a
new-on-appeal theory based upon a contractual provision not referenced before the district court
is waived); see also Marvel Enters., Inc. v. World Wrestling Fed’n Entm’t, Inc., 610 S.E.2d 583,
587 (Ga. Ct. App. 2005) (recognizing that, even if based upon contractual provisions, “[i]ssues
never raised at trial will not be considered for the first time on appeal” (citation and internal
quotation marks omitted). OMV’s contention is, therefore, without merit.

                                                14
under certain circumstances, exercise our discretion to consider an otherwise

waived argument. Wright, 270 F.3d at 1342-43. Here, OMV asks us to do so

because contract interpretation is a pure question of law and because declining to

consider its contention that Section 13 of the Security Agreement creates

ambiguity with the other defeasance transaction contracts would result in a

miscarriage of justice. See id. (discussing the “miscarriage of justice” exception).

Although OMV is correct on the first point, we disagree on the second.

      The miscarriage-of-justice exception does not mean that “we will entertain

all issues first raised on appeal whenever they [may be] outcome determinative,”

as OMV contends its newly asserted theory would be. First Ala. Bank of

Montgomery, N.A. v. First State Ins. Co., 899 F.2d 1045, 1060 n.8 (11th Cir.

1990). Doing so “would swallow our general rule of waiver, further impeding the

efficient administration of justice.” Id. Both parties agree that, had the contract

played out as OMV and TriMont expected it to, there would have been no leftover

securities. A litigant’s inability to inject a new ambiguity into a contract about

who will recoup an unanticipated sum will rarely be a miscarriage of justice when

that party received the benefit of its bargain. And, because it never discussed at all

the contract under which it claims entitlement to the unexpected excess securities,

OMV did not fulfill its obligation to fairly present its theory to the district court.

                                           15
Refusing to relieve OMV of the consequences of that omission by declining to

consider OMV’s newly identified ambiguity will not work the kind of injustice

that would incline us to consider an otherwise waived argument.

      Further, OMV’s reliance upon the implied covenant of good faith and fair

dealing is also misplaced. “‘Good faith’ is a shorthand way of saying substantial

compliance with the spirit, and not merely the letter, of a contract.” Fisher v.

Toombs Cnty. Nursing Home, 479 S.E.2d 180, 184 (Ga. Ct. App. 1996). But

“[t]here can be no breach of an implied covenant of good faith where a party has

done what the provisions of the contract expressly give him the right to do.”

Nobel Lodging, Inc. v. Holiday Hospitality Franchising, Inc., 548 S.E.2d 481, 484

(Ga. Ct. App. 2001). As set out above, we agree with the district court’s

conclusion that the contracts unambiguously grant TDA the right to the leftover

securities, and there was no breach of the covenant of good faith.

      Finally, we reject OMV’s argument that general notions of equity require us

to reverse the district court. OMV’s argument that its complaint should not be

dismissed because, otherwise, TDA will receive a windfall is a policy contention

with no bearing on the outcome of this case. We are not in the business of

rewriting lawyer-drafted contracts for sophisticated parties when they wish that the

outcome after performance had been different. OMV received the benefit of its

                                         16
bargain, the release of its building from the mortgage without a prepayment

penalty. That TDA may have received a higher-than-anticipated payment for

arranging the accomplishment of that result is no reason to reverse.

                                        IV.

      For the foregoing reasons, the judgment of the district court dismissing

OMV’s complaint for failure to state a claim is

      AFFIRMED.




                                         17
