               Case: 17-12108     Date Filed: 01/12/2018   Page: 1 of 8


                                                           [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 17-12108
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 2:17-cv-00014-SPC-CM



COLLIER COUNTY,
a political subdivision of the State of Florida,

                                                   Plaintiff - Appellant,

                                  versus

HOLIDAY CVS, L.L.C.,
a corporate subsidiary of CVS Health Corp.,

                                                    Defendant,

RTG, LLC,
a Nebraska limited liability company,

                                                   Defendant - Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (January 12, 2018)
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Before JORDAN, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:

       Collier County, Florida appeals the dismissal of its suit against RTG, LLC

(RTG) and Holiday CVS, L.L.C. (CVS), as well as the denial of leave for Collier

to further amend its complaint. The district court determined Collier’s claims were

barred by collateral estoppel and denied leave to amend because amendment would

be futile. After careful review,1 we affirm.

                                       I.     BACKGROUND

       This case arises out of an eminent domain action. 2 Collier County, a political

subdivision of Florida, planned to expand an intersection. To complete

construction, however, Collier needed to acquire an additional right-of-way. The

relevant area included property owned by RTG, which RTG had leased to CVS.

       On January 25, 2013, Collier filed a petition to commence an eminent

domain proceeding against RTG and CVS. The parcels Collier sought to condemn

included eleven of CVS’s parking spaces. CVS responded to the petition on

February 19, 2013, requesting full compensation as well as “business damages



       1
         We review the district court’s decision to apply collateral estoppel de novo, but the
factual determinations underlying its legal conclusion will be upheld absent clear error. Quinn v.
Monroe Cty., 330 F.3d 1320, 1328 (11th Cir. 2003). We review the denial of leave to amend for
abuse of discretion. Smith v. Duff & Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993).
       2
         We take these facts from Collier’s Amended Complaint and view the same in the light
most favorable to Collier, the nonmoving party. Boyle v. City of Pell City, 866 F.3d 1280, 1284
n.1 (11th Cir. 2017).
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and/or relocation damages.” RTG also claimed it was entitled to full compensation

and severance damages. Several months later, on May 20, 2013, CVS terminated

its lease with RTG, citing the eleven lost parking spaces. But CVS did not close;

instead, it continued operating as RTG’s month-to-month tenant.

      Meanwhile, CVS and RTG’s damages claims proceeded to a jury trial. The

Amended Complaint alleges “CVS and RTG entered into a plan or scheme to

‘game’ the eminent domain system.” Although CVS fully intended to continue

operating as RTG’s tenant, CVS and RTG nonetheless sought to maximize the

damages award by representing that CVS would be forced to close and RTG would

be unable to find another viable pharmacy tenant.

      In support, the Amended Complaint cites CVS’s “sworn testimony that

‘enough business would be lost permanently that would not allow [CVS] to remain

profitable after those [parking] spaces were taken.’” CVS declared the location

would close on January 1, 2015. In a similar vein, RTG represented it would be

unable to rent the property out as a pharmacy or convenience store. The jury

awarded CVS $1,933,000.00 in business damages and awarded RTG

$3,100,000.00 in severance damages. Collier paid the awards in full.

      January 1, 2015, came and went. CVS continued operating at the

intersection as RTG’s tenant. Collier filed suit against CVS and RTG in state court,

alleging unjust enrichment and civil conspiracy to commit extrinsic fraud on the


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court. In a notice filed in state court, Collier later withdrew the civil conspiracy

claim, leaving only unjust enrichment in play.

      CVS removed the case to federal court. CVS and RTG both moved to

dismiss. Collier sought leave to file a second amended complaint. The district court

determined res judicata barred Collier’s unjust enrichment claim and granted CVS

and RTG’s motions, dismissing the action with prejudice. The court

simultaneously denied Collier’s motion for leave to amend because amendment

would be futile. Collier appealed.

                                     II.   DISCUSSION

      A court may consider a document attached to a motion to dismiss without

converting the motion into one for summary judgment only if the document is

central to the plaintiff’s claim and its authenticity is not challenged. Day v. Taylor,

400 F.3d 1272, 1276 (11th Cir. 2005). Here, the district court considered portions

of the trial transcript from the eminent domain action, which CVS and RTG had

attached to their respective motions to dismiss.

      Collier asserts considering those excerpts was error because the transcript is

not central to its unjust enrichment claim. We disagree. CVS’s representations at

trial that the taking would render operations at the intersection unsustainable are

the heart of Collier’s unjust enrichment claim. The Amended Complaint states:

“As part of their scheme, at the trial, CVS and RTG represented that CVS would


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be leaving . . . because of the ‘taking,’ thereby leaving RTG without a tenant.” In

support, the Amended Complaint quotes the trial transcript: “CVS gave sworn

testimony that ‘enough business would be lost permanently that would not allow

[CVS] to remain profitable . . .’”

      Collier’s attempt to characterize these sections of the Amended Complaint

as “fleeting references” made “for purposes of background only” is unavailing.

This case was, in Collier’s words, brought to prevent CVS and RTG “from

obtaining a windfall as a result of retaining the justifiable payment made by

[Collier] due to a jury’s verdict plus the benefits of CVS remaining in business and

a tenant of RTG.” Collier’s unjust enrichment claim is viable only insofar as the

jury relied on representations that, as a result of the taking, CVS would not remain

in operation as RTG’s tenant after January 1, 2015. The portions of the trial

transcript considered by the district court go directly to that issue.

      The excerpts show Collier’s counsel explicitly advised the jury to consider

the possibility CVS would continue operating as RTG’s month-to-month tenant.

Counsel asked the jury, “[W]hat if they don’t move out? . . . [A]t least as long as

they are profitable, why would anyone leave? . . . I don’t know whether they are

going to shut down or not. Maybe you can come up with some opinions on that.”

Because the transcript is central to Collier’s claim and its authenticity is not

disputed, considering the same was not error.


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      Next, Collier asserts its case is not barred by res judicata. Collateral

estoppel, a form of res judicata, precludes the re-adjudication of an issue actually

litigated and decided in a previous adjudication, even if it arises in the context of a

different cause of action. Cmty. State Bank v. Strong, 651 F.3d 1241, 1263–64

(11th Cir. 2011). We apply the preclusion law of the state whose courts rendered

the first decision—here, the Florida courts. Agripost, LLC v. Miami-Dade Cty., 525

F.3d 1049, 1052 n.3 (11th Cir. 2008). Under Florida law, collateral estoppel

applies if: (1) the identical issue was presented in a prior proceeding; (2) the issue

was a critical and necessary part of the prior determination; (3) there was a full and

fair opportunity to litigate the issue; (4) the parties to the prior action and the

present action are the same; and (5) the issue was actually litigated during the prior

action. Marquardt v. State, 156 So. 3d 464, 481 (Fla. 2015).

      The issue in this case could not, Collier contends, have been presented

during the eminent domain trial because the “unjust windfall . . . did not even

begin to occur until over one year after the conclusion of the trial and the jury’s

verdict.” Not so. Collier’s counsel specifically urged the jury in the eminent

domain trial to consider, when it assessed the appropriate damages, that CVS could

elect to remain as a month-to-month tenant after January 1, 2015. Put simply:

Collier’s counsel directed the jury to consider the possibility of the same

“windfall” Collier now asserts the jury could not have accounted for. True, what


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was once a possibility had not yet become a reality, but that does not alter the

simple fact that the same issue was presented to (and necessarily considered by)

the jury in determining the damages owed CVS and RTG.

      Finally, the district court did not abuse its discretion by denying Collier

leave to further amend its complaint. If the underlying facts or circumstances relied

upon by a plaintiff may be a proper subject of relief, Hall v. United Ins. Co. of Am.,

367 F.3d 1255, 1262–63 (11th Cir. 2004), leave to amend “should be freely given,”

Fed. R. Civ. P. 15(a). However, denying leave to amend is not an abuse of

discretion when amendment would be futile. Id. Here, the proposed second

amended complaint arises from the same set of operative facts as the Amended

Complaint, which the district court properly dismissed on the basis of collateral

estoppel. Therefore, the district court did not abuse its discretion.

                                   III.   CONCLUSION

      The district court did not err. Considering the trial transcript excerpts

attached to CVS and RTG’s motions to dismiss was proper because the transcript

is central to Collier’s unjust enrichment claim and its authenticity is not disputed.

Dismissal with prejudice was appropriate because the damages owed CVS and

RTG had already been decided by a jury explicitly urged to consider the possibility

that CVS would continue to operate as RTG’s tenant. Finally, because amendment




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would have been futile, denying Collier leave to further amend its complaint was

not an abuse of discretion.

      AFFIRMED.




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