               Case: 11-15950       Date Filed: 05/20/2013     Page: 1 of 9


                                                               [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 11-15950
                             ________________________

                         D.C. Docket No. 1:09-cv-03582-SCJ

TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA,

                                                         Plaintiff- Counter Defendant -
                                                         Appellee,

                                          versus

WINMARK HOMES, INC., et al.,

                                                         Defendants-Counter
                                                         Claimants - Appellants.

                            __________________________

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

                                     (May 20, 2013)

Before BARKETT, JORDAN, and RIPPLE, * Circuit Judges.

PER CURIAM:


*
 Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
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          Travelers initiated this action against several entities and individuals to

recover under a general indemnity contract in connection with the execution of

surety bonds. Having reviewed the record, and with the benefit of oral argument,

we affirm the district court’s grant of summary judgment in favor of Travelers.

                                                      I

          In 2005, a number of developers 1 started building eight residential

subdivisions in Gwinnett and Forsyth Counties in Georgia. Pursuant to various

development performance and maintenance agreements, the developers agreed

that, as a condition precedent to county approval of the subdivision plats, they

would construct and maintain certain improvements (i.e., roads, sidewalks,

landscaping, and drainage facilities). In July of 2007, Travelers and the Winmark

defendants executed a general contract of indemnity (the “indemnity agreement”);

Travelers agreed to issue surety bonds on behalf of the developers and other

individuals,2 all of whom agreed to indemnify Travelers for any loss that it might

incur as a result of issuing the bonds. We refer to the developers and the

individuals collectively as the Winmark defendants. Travelers subsequently issued

22 subdivision maintenance/performance surety bonds. Following a collapse in the

real estate market, all of the subdivisions were ultimately abandoned.

1
  The developers are Winmark Homes, Inc., D.G. Jenkins Development Corporation, D.G.
Jenkins Management Corporation, Ascenture Homes, LLC, JSA, Inc., and Oakland Trace, LLC.
2
    The individuals are David G. Jenkins, Chris D. Jenkins, and Clifford L. Sandoz.

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       Gwinnett County gave notice to the developers and to Travelers that the

bonded obligations on some of the bonds had not been completed and that

additional work was needed. When the developers refused to perform the

additional maintenance, Travelers demanded that the Winmark defendants provide

either the full and complete discharge of Travelers from all outstanding bonds or

an irrevocable letter of credit in the amount of $924,348.47 (the alleged amount of

undischarged liability under the bonds). The Winmark defendants did neither. A

few weeks later, Travelers issued another demand under the indemnity agreement,

requiring once again discharge from all outstanding bonds or an irrevocable letter

of credit in the amount of $659,348.47. Travelers subsequently revised its position

and demanded a letter of credit in the amount of $223,846.00, which reflected the

low-end estimate of Robert Colby, a professional engineer and construction

consultant, of the cost of completing the bonded work remaining at the

subdivisions. 3 The Winmark defendants failed to meet Travelers’ demands,

prompting it to file this action. The Winmark defendants filed counterclaims

alleging breach of contract, breach of the covenant of good faith and fair dealing,

and breach of fiduciary duty.

       Travelers moved for summary judgment on its claim for specific

performance and indemnification, and on the counterclaims. The district court

3
  This reduced amount, $223,846.00, does not include the cost of placing sidewalks on vacant
lots and excavating the retention ponds.

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granted Travelers’ motions. The Winmark defendants appeal from the district

court’s grant of summary judgment. They contend that the district court erred in

(1) requiring them to provide an irrevocable letter of credit in the amount of

$223,846.00; (2) awarding Travelers attorneys’ fees and expenses in the amount of

$107,048.21; and (3) rejecting their counterclaims.

                                              II

      We review a grant of summary judgment de novo and apply the same legal

standards as the district court. See Citizens for Smart Growth v. Sec’y of the Dep’t

of Transp., 669 F.3d 1203, 1210 (11th Cir. 2012). “The court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). We view the evidence and all factual inferences in the light most favorable

to the party opposing the motion. See Prickett v. DeKalb County, 349 F.3d 1294,

1296 (11th Cir. 2003) (citations and quotations omitted). Plenary review applies to

the construction of written contracts. See Nat’l Fire Ins. Co. of Hartford v. Fortune

Constr. Co., 320 F.3d 1260, 1267 (11th Cir. 2003).

                                         A

      A federal court in a diversity case is required to apply the choice of law rules

of the state in which that court sits. See Klaxon Co. v. Stentor Electric Mfg. Co.,




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313 U.S. 487, 496 (1941); O’Neal v. Kennamer, 958 F.2d 1044, 1046 (11th Cir.

1992). Here it is undisputed that Georgia contract law applies.

      When interpreting indemnity agreements under Georgia law, we apply the

ordinary rules of contract construction. See Anderson v. U.S. Fid. & Guar. Co.,

600 S.E.2d 712, 715 (Ga. Ct. App. 2004). No construction is required or even

permissible when the language employed by the parties in the contract is plain,

unambiguous and capable of only one reasonable interpretation. See id. See also

Reliance Ins. Co. v. Romine, 707 F. Supp. 550, 552 (S.D. Ga. 1989) (“Under

Georgia law, where the language of a contract is definite and unambiguous, a court

must give it effect.”), aff’d, 888 F.2d 1344 (11th Cir. 1989) (per curiam).

      The indemnity agreement requires the Winmark defendants to provide

Travelers with an irrevocable letter of credit if they fail to obtain Travelers’

discharge from bond liability. The indemnity agreement states, in ¶ 5, as follows:

      (a) Indemnitors shall, within thirty (30) days of receipt of Company’s
      [Travelers] written demand (“Discharge Demand”), procure the full
      and complete discharge of the Company from any and all Bond(s) . . .
      If Indemnitors fail to provide the aforementioned discharge
      Indemnitors shall, within an additional seven (7) days, provide
      Company with an irrevocable letter of credit in form, content and by a
      bank acceptable to Company. The letter of credit shall be in an
      amount equal to the total of all undischarged liability under said
      Bond(s), which liability shall be determined at the time of the
      Company’s Discharge Demand.

[D.E. 58-5 at 2, ¶ 5] (emphasis added).



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      We agree with the district court that the Winmark defendants’ promise to

provide an irrevocable letter of credit is enforceable by its terms through an order

of specific performance. See Anderson, 600 S.E.2d at 715 (recognizing that the

Georgia court of appeals “consistently has upheld the validity and enforceability of

indemnification agreements executed in connection with the issuance of surety

bonds”); Hanover Ins. Co. v. Holley Constr. Co. & Assocs., Inc., 2012 WL 398135,

at *7 (M.D. Ga. Feb. 7, 2012) (enforcing an indemnity agreement’s collateral

security provision through an order of specific performance); Romine, 707 F. Supp.

at 553 (holding that, pursuant to terms of the indemnification agreement, plaintiff

was entitled to be indemnified by defendant). The indemnity agreement expressly

states that the letter of credit “shall be in an amount equal to the total of all

undischarged liability under said Bond(s),” which means exactly what it says—the

amount under the bonds that has not been discharged or paid. The district court

certainly did not err in determining that the total undischarged liability on the

bonds was $223,846.00, consistent with Mr. Colby’s low-end estimate, and in

awarding the irrevocable letter of credit in that amount.

      Additionally, having reviewed the record, we are not persuaded by the

Winmark defendants’ argument that Travelers acted in bad faith in demanding the

letter of credit in accordance with the indemnity agreement. Similarly, we find no

merit to the Winmark defendants’ counterclaims that Travelers breached any


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fiduciary duties to them or breached its contract. Having found that Travelers’

demand was expressly authorized by the indemnity agreement, the Winmark

defendants’ counterclaims fail as a matter of law.

                                         B

       The indemnity agreement, again in ¶ 5, specifically states that the Winmark

defendants waive their right to contest the requirement to provide an irrevocable

letter of credit:

       (b) Indemnitors waive, to the fullest extent permitted by law, each and
       every right that they may have to contest this requirement.
       Indemnitors stipulate and agree that Company will not have an
       adequate remedy at law should Indemnitors fail to post said letter of
       credit and further agree as a result that Company is entitled to specific
       performance of this provision.

(emphasis added). The district court found that, pursuant to the plain language of

the indemnity agreement, the Winmark defendants had agreed to waive any right to

challenge the requirement for a letter of credit and that the waiver provision was

not unconscionable. Because the Winmark defendants do not appeal this ruling, 4

the district court’s order on this point stands. “This circuit has consistently held

that issues not raised on appeal are abandoned.” North Am. Med. Corp. v. Axiom

Worldwide, Inc., 522 F.3d 1211, 1217 n.4 (11th Cir. 2008). See also Greenbriar,

Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir. 1989).
4
 Although not briefed in their response to the motions for summary judgment, at one of the
hearings below, the Winmark defendants argued that the waiver provision was unconscionable.
See Transcript of Motions Hearing at 37 [D.E. 85]. But on appeal they make no such argument,
or any other argument, challenging the waiver provision.

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                                          C

      With respect to attorneys’ fees, the indemnity agreement specifically

provides as follows:

      In consideration of the furnishing of any such bond . . . Indemnitors . .
      . promise . . . To indemnify and exonerate Company [Travelers] from
      and against any and all loss . . . including . . . court costs and counsel
      fees, as well as any expense incurred or sustained by reason of making
      any investigation . . . with the furnishing of Bond(s) . . . and the
      enforcement of this Agreement . . . To this end Indemnitors promise . .
      . [t]o promptly reimburse Company . . . it is agreed that (1) originals
      or photocopies of claim drafts, or of payment records, kept in the
      ordinary course of business, including computer printouts, verified by
      affidavit, shall be prima facie evidence of the fact and amount of loss,
      (2) Company shall be entitled to reimbursement for any and all
      disbursements made by it.

(emphasis added). Travelers submitted payment records of its attorneys’ fees in

the form of a computer printout verified by affidavit, thereby meeting its prima

facie burden. See Wilson Affidavit ¶¶ 41-42 [D.E. 58-3]; Exhibit M to Wilson

Affidavit [D.E. 58-16].     By signing the indemnity agreement, the Winmark

defendants expressly agreed that computer printouts, verified by affidavit, would

be prima facie evidence of the fact and amount of loss. Nevertheless, the Winmark

defendants did not submit any evidence disputing the fees requested. Based on the

record before us, we agree with the district court that Travelers is entitled to an

award of attorneys’ fees and expenses under the indemnity agreement because it

presented prima facie evidence of its loss and because the Winmark defendants did

not provide any rebuttal evidence. See Cagle Constr., LLC v. Travelers Indemnity

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Co., 700 S.E.2d 658, 661 (Ga. Ct. App. 2011) (affirming trial court’s grant of

summary judgment to surety for attorneys’ fees); Anderson, 600 S.E.2d at 716

(affirming trial court’s award of attorneys’ fees, on summary judgment, to surety

based on affidavits that qualified as prima facie evidence pursuant to indemnity

agreement); Romine, 707 F. Supp. at 553 (finding that plaintiff was entitled to

reasonable attorney’s fees incurred in the enforcement of an indemnification

agreement).

                                         III

      The Winmark defendants’ promise to provide a letter of credit upon demand

to Travelers in the Indemnity Agreement is enforceable according to its terms.

Travelers is entitled to specific performance in the form of an irrevocable letter of

credit and to its attorneys’ fees. The Winmark defendants’ counterclaims fail as a

matter of law.

      AFFIRMED.




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