                                                                               [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT             FILED
                          _____________________________U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       July 18, 2008
                                   No. 06-13571                      THOMAS K. KAHN
                          _____________________________                  CLERK

                        D. C. Docket No. 01-03084 CV-GET-1

CASCADE CROSSING II, LLC,

                                                         Plaintiff-Appellee,

        versus

RADIOSHACK CORPORATION,
f.k.a. Tandy Corporation,

                                                         Defendant-Appellant.

                 _________________________________________

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

                                     (July 18, 2008)

Before EDMONDSON, Chief Judge, TJOFLAT and GIBSON,* Circuit Judges.

PER CURIAM:



    *
     Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
      This case is about the application of a statutory cap on attorneys’ fees under

O.C.G.A. § 13-1-11 to a contract dispute between Cascade Crossing II, LLC

(“Plaintiff”) and Radioshack Corp. (“Defendant”). Pursuant to a written lease

agreement, Defendant leases space at a Georgia shopping mall owned by Plaintiff.

The lease agreement authorizes the prevailing party in any legal action to recover

all reasonable expenses, including attorneys’ fees.

      In 2000, Defendant informed Plaintiff that Plaintiff’s lease with another

tenant violated an exclusivity clause in the lease agreement. Plaintiff brought suit

for declaratory judgment, back rent, and attorneys’ fees and costs. The parties

filed cross-motions for summary judgment on all claims, and the district court

concluded that Defendant had waived its rights under the exclusivity clause for

acts before November 2000 but had retained its rights after then. The district court

denied both parties’ requests for attorneys’ fees and costs, concluding that neither

party had “prevailed” in the underlying dispute.

      On appeal, we concluded that Defendant had waived all of its rights under

the exclusivity clause and determined that Plaintiff was the only prevailing party

and was entitled to attorneys’ fees and costs. Cascade Crossings II, LLC v.

Radioshack Corp., 131 F. App’x 191, 194 (11th Cir. 2005). On remand,




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Defendant argued that O.C.G.A. § 13-1-11 capped Plaintiff’s fees. The district

court concluded that O.C.G.A. § 13-1-11 did not apply.

      We again vacated the district court’s judgment and remanded because the

district court had not explained the basis for concluding that O.C.G.A. § 13-1-11

did not apply. The district court confirmed its former decision, explaining that

O.C.G.A. § 13-1-11 did not apply because Plaintiff, among other things, sought a

declaration on the enforceability of part of the lease agreement and, therefore, that

this civil action was not one merely to recover past due rent.

      On appeal, we faced an issue of state law—whether O.C.G.A. § 13-1-11

applies to cap the award of attorneys’ fees in this case—that we considered

outcome determinative. Setting out the background in some detail, we certified

the state law issue to the Supreme Court of Georgia. Cascade Crossing II, LLC v.

Radioshack Corp., 480 F.3d 1228, 1230–32 (11th Cir. 2007).

      The Supreme Court of Georgia clarified the applicable state law for us. See

Radioshack Corp. v. Cascade Crossing II, LLC, 653 S.E.2d 680 (Ga. 2008)

(holding that O.C.G.A. § 13-1-11 does apply to cap the award of attorneys’ fees in

this case.

      In the light of the Georgia opinion, we conclude that O.C.G.A. § 13-1-11

applies to and limits the award of attorneys’ fees and costs and, therefore,

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precludes an award of full attorneys’ fees and costs as provided for in the lease

agreement. Therefore, we vacate the district court’s judgment and remand for

further proceedings.

      VACATED and REMANDED.




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