           Case: 12-11852   Date Filed: 10/02/2012   Page: 1 of 10




                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-11852
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 7:10-cv-00122-HL


KURT F. WILKENING,

                                                               Plaintiff-Appellee,

                                  versus

VEOLIA ES EVERGREEN LANDFILL, INC.,
a Georgia corporation,
VEOLIA ES PECAN ROW LANDFILL, LLC,
a Georgia limited liability corporation,

                                                        Defendants-Appellants,

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________
                            (October 2, 2012)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:
                Case: 12-11852        Date Filed: 10/02/2012       Page: 2 of 10

       After a bench trial, Defendants Veolia ES Evergreen Landfill, Inc. and

Veolia Pecan Row Landfill, LLC appeal the district court’s final judgment in favor

of Plaintiff Kurt Wilkening on his claims of breach of contract under Georgia law

and for declaratory judgment. After review, we affirm.1

                               I. BACKGROUND FACTS

A.     The Royalty Fees Contract

       Plaintiff Wilkening’s company, Big Bin Services, Inc. (“Big Bin”),

purchased a piece of property in Lowndes County, Georgia. Big Bin then

obtained a permit to operate a landfill on the site.

       In 1991, Plaintiff Wilkening sold Big Bin and its assets to Equivest Waste

Solutions. At the same time, Big Bin agreed to pay Plaintiff Wilkening royalty

fees of “$1.00 for each ton of waste, if any, delivered to the Landfill (including

any contiguous and/or vertical expansions thereof approved by the Environmental

Protection Division of the Georgia Department of Natural Resources) . . . and

accepted by Big Bin . . . .” (Emphasis added). The contract defined “contiguous”

to mean “any property within a one mile radius of the Landfill.” Thus, Big Bin

agreed to pay royalty fees for “waste” delivered to the landfill or to an expansion


       1
         “We review a grant of summary judgment de novo, applying the same legal standards
that bind the district court.” Storfer v. Guar. Trust Life Ins. Co., 666 F.3d 1277, 1278-79 (11th
Cir. 2012).

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on any property within one mile of the landfill.

      In 1998, through a series of mergers and corporate name changes,

Defendant Veolia Pecan Row Landfill, LLC (“Veolia Pecan Row”) became the

owner and operator of Big Bin’s “Landfill.” Defendants Veolia Pecan Row and

Veolia ES Evergreen Landfill, Inc. (“Veolia Evergreen”) are both wholly-owned

subsidiaries of Veolia ES North America, LLC.

      In 2002, Defendant Veolia Evergreen acquired an already-permitted landfill

from the Deep South Regional Solid Waste Management Authority (“Deep South

Authority”). Veolia Evergreen’s landfill is adjacent to, and shares a common

boundary with, Veolia Pecan Row’s landfill. Veolia Evergreen acquired this

adjacent landfill intending to move Veolia Pecan Row’s operations and waste

stream to the Evergreen landfill once the Pecan Row landfill reached capacity,

which it did in 2010. In addition, between 2002 and 2010, the two landfills shared

Pecan Row’s mailing address, front entrance, scales and some internal roads.

B.    Wilkening’s Complaint

      Plaintiff Wilkening’s complaint alleged that Defendants breached the

royalty fees contract by failing to pay Wilkening for (1) reusable or recyclable

material delivered to Veolia Pecan Row’s landfill and (2) material deposited in

Veolia Evergreen’s adjacent landfill. Wilkening sought damages in the form of

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royalty payments for material deposited in Veolia Pecan Row’s and Veolia

Evergreen’s landfills.

       After extensive discovery, Wilkening moved for summary judgment. In

response, Defendants Veolia Pecan Row and Veolia Evergreen argued: (1) that

recyclable and reusable material delivered to the Pecan Row landfill is not “waste”

under the royalty fees contract because it is not deposited in the landfill so as to

deplete capacity; and (2) that Veolia Evergreen’s landfill is a separate landfill,

rather than an “expansion” of Veolia Pecan Row’s landfill within the meaning of

the royalty fees contract.2

C.     District Court’s Rulings

       The district court granted Plaintiff Wilkening’s summary judgment motion

as to liability, but denied it as damages. The district court found the term “waste”

in the royalty fees contract to be unambiguous and refused to “look outside the

four corners of the Agreement to define the term.” Instead, the district court

concluded that “[w]aste simply means waste.” The district court referred to the

ordinary, dictionary definition of “refuse or superfluous material” and “damaged,



       2
       Veolia ES North America, LLC was named as a defendant in Wilkening’s original
complaint, but not in his amended complaint. Defendants Veolia Pecan Row and Veolia
Evergreen are represented by the same counsel and made a joint response to Plaintiff’s motion
for summary judgment.

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defective, or superfluous material produced during or left over from a

manufacturing process or industrial operation, scrap, refuse from places of human

or animal habitation and garbage, rubbish.” (Quotation marks omitted). The

district court determined that the ordinary definition of “waste,” would include the

kind of recyclable and reusable material (such as construction and demolition

material, chemical mixing agents, shredder fluff, foundry sand and by-product ash)

delivered to Defendants’ landfills and that how Defendants classified this material

after delivery was irrelevant. Thus, the district court concluded that under the

royalty fees contract, Wilkening is entitled to payment for waste, including waste

Veolia Pecan Row classified as recyclable and reusable, delivered to Veolia Pecan

Row’s landfill.3

       With respect to Veolia Evergreen’s landfill, the district court noted the

following undisputed facts: (1) the EPD issued a solid waste permit for the landfill

Veolia Evergreen purchased, and the permit was transferred to Veolia Evergreen;

(2) Veolia Evergreen “purchased the Evergreen Landfill in order to continue and

expand its solid waste business”; (3) “the Evergreen Landfill is located within one

mile of the Pecan Row Landfill.” The district court concluded that, because


       3
        The district court determined, however, that Georgia’s six-year statute of limitations
barred Wilkening from seeking damages for nonpayment of royalties prior October 20, 2004.
That ruling is not at issue on appeal.

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Veolia Evergreen’s landfill is located within a one mile radius of Veolia Pecan

Row’s landfill, Wilkening is entitled to royalty payments for past and future waste

delivered to the Veolia Evergreen landfill. After a hearing, the district court

issued a second order awarding Wilkening $707,411.01 in damages for unpaid

royalty payments.

                                 II. DISCUSSION

      On appeal, Defendants do not challenge the amount of damages. Rather,

they argue, as they did in the district court, that (1) “waste” does not include

recyclable or reusable material; and (2) the Veolia Evergreen landfill is not a

contiguous “expansion” of the Veolia Pecan Row landfill.

      After review of the record and the parties’ briefs, we find no reversible error

in the district court’s grant of partial summary judgment to Wilkening. The

district court properly concluded that the term “waste” in the royalty fees contract

is unambiguous and should be given its plain and ordinary meaning. See

American Empire Surplus Lines Ins. Co. v. Hathaway Dev. Co., Inc., 288 Ga. 749,

750, 707 S.E.2d 369, 371 (2011) (explaining that if the contract’s terms are

unambiguous, the court enforces the contract according to its terms and looks only

to the contract for the meaning); Benton v. Patel, 257 Ga. 669, 672, 362 S.E.2d

217, 220 (1987) (stating that words in a contract “will be given their ordinary

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signification, and where the language in the document is plain, its meaning will

not be extended by interpretation”); O.C.G.A. § 13-2-2(2) (providing that contract

terms are generally given their “usual and common signification”).

       For the reasons given by the district court, we find no merit to Defendants’

argument that the term “waste” actually refers to “solid waste,” as defined in the

Georgia’s Solid Waste Management Act, O.C.G.A. § 12-8-22(25). Nor do we

accept that the term “waste” contains a latent ambiguity in that it could refer to

“solid waste.” As the district court explained, had the parties intended this

meaning, commonly used in the waste management industry, they could have

inserted the word “solid” before the word “waste,” but they did not. Moreover,

because the term “waste” is clear and unambiguous, the district court correctly

declined Defendants’ invitation to look outside the contract to determine the

parties’ intent. See Irvin v. Laxmi, Inc., 266 Ga. 204, 205, 467 S.E.2d 510, 512

(1996) (“Parol evidence may not be considered unless the written instrument is

ambiguous.”); S. Fed. Sav. & Loan Ass’n of Atlanta v. Lyle, 249 Ga. 284, 287,

290 S.E.2d 455, 458 (1982) (stating that the court may “look outside the written

terms of the contract” to determine the parties’ intent only when an ambiguity

exists).

       Defendants also challenge the district court’s conclusion that the Veolia

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Evergreen landfill was a “contiguous” “expansion” of Veolia Pecan Row’s

landfill. Defendants point to the fact that the Evergreen landfill was originally

developed and separately permitted by the Deep South Authority to compete with

the Pecan Row landfill. However, in this record, it is also undisputed that Veolia

Evergreen acquired the landfill in 2002 for the purpose of moving Veolia Pecan

Row’s operation and customers to the Veolia Evergreen landfill when the Pecan

Row landfill filled up. In fact, Veolia Evergreen represented to the EPD that its

landfill was intended “to serve as a continuation of landfilling for the Pecan Row

Landfill once that landfill reaches capacity” and that “both landfills will handle the

same waste stream in succession from Pecan Row Landfill to Evergreen Landfill.”

Similarly, in meetings with EPD staff, Veolia consultants explained that Veolia

(the parent company of Veolia Pecan Row and Veolia Evergreen) planned to

“move their operations to the Evergreen site” as the Pecan Row landfill filled up.

Between 2002 and 2010, the Veolia Evergreen landfill shared the Veolia Pecan

Row landfill’s mailing address, front entrance, scales and some internal roads.

And, by the time the Veolia Evergreen landfill began operating in 2010, the Veolia

Pecan Row landfill’s customers and employees in fact had been “transitioned” to

the Veolia Evergreen landfill.

      Defendants also point out that the EPD does not consider the Veolia

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Evergreen landfill to be a horizontal or vertical “expansion” of the Veolia Pecan

Row landfill, as those terms are defined by Georgia law, and has not regulated it as

such. This is not surprising since no one contends that the Veolia Evergreen

landfill is a horizontal or vertical expansion. See O.C.G.A. § 12-8-24(e)(1)(C)(ii)

(requiring permit modifications for “vertical or horizontal expansion”); Ga. Comp.

R. & Regs. § 391-3-4-.01(29) & (74) (defining lateral and vertical expansion).

Moreover, EPD staff testified that, although the Veolia Evergreen and Veolia

Pecan Row landfills are separately-permitted landfills, they would be counted as

one landfill under O.C.G.A. § 12-8-25.4 because the Veolia Evergreen landfill is a

“contiguous expansion” of the Veolia Pecan Row landfill under that statute. See

O.C.G.A. § 12-8-25.4 (allowing only three permitted solid waste facilities within a

two-mile radius, but providing that two contiguous facilities with the same owner

and permitted for the same type of landfill are counted as one).

      Finally, Defendants assert two additional arguments for why they are not

liable: (1) Veolia Evergreen was not a “successor” party to Big Bin under the

royalty fees contract; and (2) Veolia Pecan Row itself never “accepted” waste

delivered to the Veolia Evergreen landfill. Because Defendants did not fairly raise

these issues before the district court, we do not address them. See Resolution

Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598-99 (11th Cir. 1995) (en banc)

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(explaining that arguments not fairly raised in the district court generally are not

considered on appeal); In re Pan Am. World Airways, Inc., 905 F.2d 1457, 1462

(11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or

defense for appeal, she must first clearly present it to the district court, that is, in

such a way as to afford the district court an opportunity to recognize and rule on

it.”).

         For these reasons, we affirm the district court’s final judgment in favor of

Plaintiff Wilkening.

         AFFIRMED.




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