Winn-Dixie Stores, Inc. v. Dolgencorp, LLC

Case: 15-12990 Date Filed: 01/31/2018 Page: 1 of 35

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 15-12990
________________________

D.C. Docket Nos. 9:11-cv-80601-DMM,
9:11-cv-80638-DMM

9:11-cv-80601-DMM

WINN-DIXIE STORES, INC.,
WINN-DIXIE STORES LEASING, LLC,
WINN-DIXIE RALEIGH, INC.,
WINN-DIXIE RALEIGH LEASING, LLC,
WINN-DIXIE MONTGOMERY, LLC,
WINN-DIXIE MONTGOMERY LEASING, LLC,

Plaintiffs-Appellants,

versus

DOLGENCORP, LLC,

Defendant,

BIG LOTS STORES, INC.,

Defendant-Third Party Plaintiff
Counter Defendant-Appellee,

DOLLAR TREE STORES, INC.,

Defendant-Counter Claimant-
 Case: 15-12990 Date Filed: 01/31/2018 Page: 2 of 35

Appellee,

NORTHEAST PLAZA VENTURE I, LLC,

Counter Claimant,

AVON SQUARE, LTD, et al.,

Third Party Defendants.
__________________________________________________________________

9:11-cv-80638-DMM

WINN-DIXIE STORES, INC.,
WINN-DIXIE STORES LEASING, LLC,
WINN-DIXIE RALEIGH, INC.,
WINN-DIXIE RALEIGH LEASING, LLC,
WINN-DIXIE MONTGOMERY, LLC,
WINN-DIXIE MONTGOMERY LEASING, LLC,

Plaintiffs-Counter Defendants-
Appellants,

versus

DOLLAR TREE STORES, INC.
a Virginia Corporation,

Defendant Counter-
Claimant-Appellee,

AVON SQUARE, LTD,

Third Party Defendant.
__________________________________________________________________

9:11-cv-80641-DMM

WINN-DIXIE STORES, INC.,

2
 Case: 15-12990 Date Filed: 01/31/2018 Page: 3 of 35

WINN-DIXIE STORES LEASING, LLC,
WINN-DIXIE RALEIGH, INC.,
WINN-DIXIE RALEIGH LEASING, LLC,
WINN-DIXIE MONTGOMERY, LLC,
WINN-DIXIE MONTGOMERY LEASING, LLC,

Plaintiffs-Appellants,

versus

BIG LOTS STORES, INC.,

Defendant-Third Party Plaintiff-
Counter Defendant-Appellee,

NORTHEAST PLAZA VENTURE I, LLC,

Third Party Defendants-
Counter Claimant,

AVON SQUARE, LTD et al.,

Third Party Defendants.

________________________

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

(January 31, 2018)

Before ED CARNES, Chief Judge, ANDERSON, and PARKER, * Circuit Judges.

ED CARNES, Chief Judge:

* Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.

3
 Case: 15-12990 Date Filed: 01/31/2018 Page: 4 of 35

After we have remanded a case with specific instructions, attorneys rarely

attempt to have the district court defy our mandate. And even if they try it, a

district court is seldom misled into that kind of error by them. This is one of those

rare cases where the attorneys representing one side successfully urged the district

court to act contrary to our mandate. Of course, we reverse that part of its

judgment.

I. FACTS AND PROCEDURAL HISTORY

Winn-Dixie filed a lawsuit against Big Lots, Dollar General, and Dollar

Tree. The facts underlying that lawsuit, which eventually led to this appeal,

follow.

A. Winn-Dixie Discovers Alleged Violations Of Its Grocery Exclusives

Winn-Dixie owns or operates Winn-Dixie grocery stores on leased property

in several states. Its stores are often the anchor tenant in a shopping center, which

gives it the power to negotiate leases that limit what its neighboring competitors

can sell in their stores. The leases that Winn-Dixie negotiates often include a

“supermarket and pharmacy exclusive” provision, which we will refer to as a

“grocery exclusive” provision. The key language in these provisions limits the

amount of space those neighboring stores can devote to selling grocery products

that compete with what Winn-Dixie is selling. Here from a typical lease is the

grocery exclusive language that Winn-Dixie insists on:

4
 Case: 15-12990 Date Filed: 01/31/2018 Page: 5 of 35

Landlord covenants and agrees that the Tenant shall have the
exclusive right to operate a supermarket in the Shopping Center and
any enlargement thereof. Landlord further covenants and agrees that
it will not directly or indirectly lease or rent any property located
within the Shopping Center, or within 1000 feet of any exterior
boundary thereof, for occupancy as a supermarket, grocery store,
meat, fish or vegetable market, nor will the Landlord permit any
tenant or occupant of any such property to sublet in any manner,
directly or indirectly, any part thereof to any person, firm or
corporation engaged in any such business without written permission
of the Tenant; and Landlord further covenants and agrees not to
permit or suffer any property located within the Shopping Center to be
used for or occupied by any business dealing in or which shall keep in
stock or sell for off premises consumption any staple or fancy
groceries, meats, fish, vegetables, fruits, bakery goods, dairy products
or frozen foods without written permission of the Tenant; except the
sale of such items in not to exceed the lesser of 500 square feet of
sales area or 10% of the square foot area of any storeroom within the
Shopping Center, as an incidental only to the conduct of another
business . . . shall not be deemed a violation hereof.

(Emphasis added.)

B. Winn-Dixie Sues Big Lots, Dollar General, And Dollar Tree

Winn-Dixie discovered that many co-located stores (that is, stores located in

the same shopping center as its own stores) were selling “groceries” in a “sales

area” greater than the grocery exclusive provisions permitted. As a result, in 2011

it filed three separate lawsuits against Big Lots, Dolgencorp (Dollar General’s

parent company, which we are referring to as “Dollar General”), and Dollar Tree,

claiming that they were operating stores in Alabama, Florida, Georgia, Louisiana,

and Mississippi in violation of Winn-Dixie’s rights under the leases. Winn-Dixie

contended that it had negotiated grocery exclusive provisions with the landlords of

5
 Case: 15-12990 Date Filed: 01/31/2018 Page: 6 of 35

each of the shopping centers at issue, and that those provisions were restrictive

covenants running with the land that bound tenants that moved into the shopping

center thereafter.

Winn-Dixie wanted to enforce the grocery exclusive provisions against a

total of 97 stores: 51 Dollar General stores, 32 Dollar Tree stores, and 14 Big Lots

stores. Of those 97 stores, 75 were located in Florida, 13 were in Alabama, 6 were

in Louisiana, 2 were in Georgia, and 1 was in Mississippi. Winn-Dixie sought

compensatory damages and punitive damages, as well as an injunction ordering the

stores in violation of the provisions to remove groceries from their stores to the

extent necessary to end the violation and ordering them not to violate the

provisions in the future.

1. The District Court’s Ruling

The district court consolidated the three cases into one. After a bench trial,

the court determined that Winn-Dixie could pursue claims against a total of 54 Big

Lots, Dollar General, and Dollar Tree stores that were located in Alabama, Florida,

and Georgia. It reasoned that under the law of those three states, the grocery

exclusive provisions were real property covenants that ran with the land, and as a

result could be enforced even though the stores were not themselves parties to

6
 Case: 15-12990 Date Filed: 01/31/2018 Page: 7 of 35

Winn-Dixie’s leases. The district court denied Winn-Dixie any relief for the 43

other stores for a number of reasons. 1

The district court then turned to answering the question of whether the 54

Big Lots, Dollar General, and Dollar Tree stores in Alabama, Florida, and Georgia

that were still in the lawsuit violated the grocery exclusive provisions, a task that

required interpreting the terms “groceries” and “sales area” in the provisions.

Without explanation, the court applied Florida law to interpret those two key terms

not only for the stores in that state but also for the stores in Alabama and Georgia.

It found that the terms “groceries” and “sales area” were ambiguous and that

Winn-Dixie did not present any extrinsic evidence that revealed the contracting

parties’ original intent as to the terms. The court acknowledged the existence of 99

Cent, a Florida appellate court decision that had addressed what the terms

“groceries” and “sales area” meant in a materially identical grocery exclusive

provision. See Winn-Dixie Stores, Inc. v. 99 Cent Stuff-Trail Plaza, LLC, 811 So.

2d 719 (Fla. 3d DCA 2002) (“99 Cent”). But the district court thought that

decision was distinguishable. Instead of following 99 Cent, the district court itself

decided the meaning to be given the terms, defining “groceries” to be “food items”

1
Of those 43 stores: 31 of them had closed; 7 of them were in Louisiana and Mississippi
where the covenants were not enforceable; 1 store’s lease predated the grocery exclusive
provision, making that provision unenforceable against that store; and 4 of them had
“nonstandard covenants” that led the district court to conclude that it could not craft for those
stores an injunction satisfying the requirements of Federal Rule of Civil Procedure 65(d).

7
 Case: 15-12990 Date Filed: 01/31/2018 Page: 8 of 35

and “beverages, including, but not limited to, bottled water, soda, and energy and

coffee drinks, but excluding alcoholic beverages.” It defined “sales area” “to

include only the footprint of the display unit, excluding aisle space.”

Based on those definitions, the district court refused to grant Winn-Dixie

injunctive relief for 37 of the 54 stores in the three states, but did grant it that relief

for 17 Florida stores.2 The court denied Winn-Dixie’s claims for compensatory

damages and punitive damages. Winn-Dixie appealed.

2. This Court’s Previous Decision

We affirmed in part and reversed in part the district court’s judgment. See

Winn-Dixie Stores, Inc. v. Dolgencorp, LLC, 746 F.3d 1008, 1045 (11th Cir.

2014). Finding no error in the district court’s rulings as to 43 of the 97 stores, see

supra note 1, we affirmed the part of the judgment that denied Winn-Dixie all relief

regarding those 43 stores. Id.

As to the remaining 54 stores, we reversed the district court’s judgment in

two critical respects. First, we held that the district court erred in applying Florida

law to interpret the grocery exclusive provisions for the 11 stores located in

Alabama and the 2 stores in Georgia. Id. at 1026–27. We explained that Florida’s

2
For 10 of the 17 Florida store locations, the district court ordered the defendants to
comply with the terms of the grocery exclusive provisions within thirty days of its order. As to
the other 7 Florida stores, it ordered them to measure the “sales area” dedicated to “groceries”
“to ensure that they are in fact not violating Winn-Dixie’s grocery exclusives and to come into
compliance if necessary.”

8
 Case: 15-12990 Date Filed: 01/31/2018 Page: 9 of 35

choice of law rules required the district court to apply the substantive law of the

state where the property is located. Id. We remanded that part of the case to the

district court so that it could apply Alabama law to the Alabama stores and Georgia

law to the Georgia stores. Id.

Second, we held that as to the 41 Florida stores the district court “erred in

finding the terms [‘groceries’ and ‘sales area’] ambiguous and proceeding . . . to

construe the terms narrowly.” Id. at 1026. We explained that it instead “should

have followed the holding in 99 Cent by looking to the dictionary definitions,

which instruct that ‘groceries’ includes food and ‘many household supplies . . . and

that sales area ‘includes fixtures and their proportionate aisle space.’” Id. (quoting

99 Cent, 811 So.2d at 722). We told the district court to look to the 99 Cent

decision’s “specific holding and . . . general analytical framework” in determining

which items are “groceries.” Id. at 1026 n.18. Because the district court had erred

by not following 99 Cent, we reversed its judgment as to the 41 Florida stores and

remanded the case for a new trial based on the definitions set out in the 99 Cent

decision.3 Id. at 1026.

3
We identified the stores at issue by the corporate numbers of the co-located stores. So,
for example, “Dollar General # 246, co[-]located with Winn–Dixie #478, [was] signified as
‘DG246/WD478.’” Winn-Dixie, 746 F.3d at 1017 n.1. The 41 Florida stores were:
BL505/WD506; BL512/WD2210; BL525/WD698; BL530/WD654; BL550/WD609;
BL553/WD236; BL555/WD307; BL558/WD160; BL1519/WD306; BL1628/WD348;
BL1711/WD302; BL4258/WD254; DG1056/WD489; DG1416/WD622; DG1453/WD662;
DG1541/WD629; DG2634/WD777; DG2969/WD681; DG7376/WD737; DG8551/WD561;
DT332/WD2311; DT723/WD254; DT807/WD657; DT892/WD2230; DT986/WD737;

9
 Case: 15-12990 Date Filed: 01/31/2018 Page: 10 of 35

3. The District Court’s Ruling on Remand

Back in the district court on remand, Dollar General, Dollar Tree, and Winn-

Dixie each moved for summary judgment. After a hearing on those motions, the

district court issued its order, which is the judgment now before us.

The district court first addressed the Alabama stores. It explained that,

because there were no Alabama cases defining “groceries” or “sales area,” the two

terms were ambiguous. As a result, it construed the two terms narrowly pursuant

to Alabama law, concluding that the term “groceries” means “food only, which

excludes prepared foods and includes beverages, including but not limited to,

bottled water, soda, and energy and coffee drinks, but excluding alcoholic

beverages.” It concluded that “sales area” means “only the footprint of the display

unit, excluding aisle space.” Applying those definitions, the district court found

that none of the Alabama stores was violating the grocery exclusive provisions.

The district court also found that, under Georgia law, the same terms were

ambiguous, and the court defined them the same way it had under Alabama law.

The 2 Georgia stores were both Dollar Tree stores. Dollar Tree later settled with

DT1566/WD228; DT2117/WD353; DT2159/WD309; DT2714/WD2205; DT2804/WD84;
DT2838/WD412; DT4181/WD678; DT4199/WD255; DT4230/WD656; DT4266/WD501;
DT4339/WD632; DT4365/WD236; DT4497/WD378; DT4511/WD647; DT4550/WD658;
DT4625/WD577. Id. at 1045 n.29. We realize that some of the 41 Florida stores are no longer
in operation, but for ease of reference we will still refer to the remaining Florida stores as “the 41
Florida stores.”

10
 Case: 15-12990 Date Filed: 01/31/2018 Page: 11 of 35

Winn-Dixie and is no longer a party in this case. As a result, no Georgia stores are

involved in this appeal.

The district court then considered the Florida stores, and this is where it

erred. It noted that for a covenant running with the land to be valid, Florida law

requires, among other things, that the party against whom enforcement is sought

have notice of the restriction. The court believed that, although Big Lots, Dollar

General, and Dollar Tree had notice of the existence of the grocery exclusive

provisions when they entered into their leases, they did not have notice of the

actual scope of those provisions until the February 20, 2002 decision in 99 Cent,

because “groceries” and “sales area” were ambiguous before that decision. As a

result, for the Big Lots, Dollar General, and Dollar Tree stores with leases

executed before February 20, 2002, the court did not apply the definitions of the

two key terms that are found in the 99 Cent decision, which we had instructed it to

apply. Instead, the district court decided that:

For [d]efendants’ Florida stores that entered lease agreements prior to
February 2002, “groceries” means food only, which excludes prepared
foods and includes beverages, including but not limited to, bottled
water, soda, and energy and coffee drinks, but excluding alcoholic
beverages, and “sales area” includes only the footprint of the display
unit, excluding aisle space.

The district court did rule that the 99 Cent definitions of “groceries” and

“sales area” applied to the Florida stores, if any, whose leases were executed after

February 20, 2002, the date of the 99 Cent decision. It interpreted 99 Cent’s

11
 Case: 15-12990 Date Filed: 01/31/2018 Page: 12 of 35

definition of “groceries” to “include food (excluding prepared foods) and

beverages (excluding alcoholic beverages) as well as many household supplies.”

And it stated that, based on the 99 Cent decision’s examples of household products

— “soap, matches, [and] paper napkins” — the household items “that are to be

considered groceries are the types associated with the preparation and service of

food, as well as the maintenance of a clean kitchen (as the primary place where

food is prepared).” It defined “sales area” to include “fixtures and their

proportionate aisle space.” When the dust cleared, the district court had applied

the 99 Cent definitions to 14 Dollar Tree stores, which are the only Florida stores

with leases executed after February 20, 2002.

The district court granted Dollar General’s motion for summary judgment as

to its stores. The court also granted in part Dollar Tree’s motion for summary

judgment as to 13 of its stores and granted Winn-Dixie’s motion for summary

judgment as to the remaining 14 Dollar Tree stores. This is Winn-Dixie’s appeal.

II. STANDARD OF REVIEW

“We review de novo the district court’s interpretation and application of this

[C]ourt’s mandate” in a previous appeal, Cox Enters., Inc. v. News-Journal Corp.,

794 F.3d 1259, 1272 (11th Cir. 2015), as well as its interpretation of state law,

Jones v. United Space All., L.L.C., 494 F.3d 1306, 1309 (11th Cir. 2007). We also

“review de novo the district court’s interpretation of the language of [a] restrictive

12
 Case: 15-12990 Date Filed: 01/31/2018 Page: 13 of 35

covenant.” Winn-Dixie, 746 F.3d at 1021. “However, if the language is

ambiguous and the district court must look to extrinsic evidence to determine the

intent of the parties, the district court’s determination of such intent is a finding of

fact and is reviewed using the clearly erroneous standard.” Id. (quotation marks

omitted).

III. THE FLORIDA STORES

Winn-Dixie contends that, as to the Florida stores, the district court violated

this Court’s mandate and also erred in interpreting the 99 Cent decision’s

definition of “groceries.”

A. The Violation Of Our Mandate As To 41 Florida Stores

Winn-Dixie first contends that the district court violated our mandate by

declining to apply 99 Cent’s definitions of “groceries” and “sales area” to all 41

Florida stores. And it did.

“The mandate rule is a specific application of the ‘law of the case’ doctrine

which provides that subsequent courts are bound by any findings of fact or

conclusions of law made by the court of appeals in a prior appeal of the same

case.” Friedman v. Mkt. St. Mortg. Corp., 520 F.3d 1289, 1294 (11th Cir. 2008)

(quotation marks omitted). “The law of the case doctrine and the mandate rule ban

courts from revisiting matters decided expressly or by necessary implication in an

earlier appeal of the same case.” AIG Baker Sterling Heights, LLC v. Am. Multi-

13
 Case: 15-12990 Date Filed: 01/31/2018 Page: 14 of 35

Cinema, Inc., 579 F.3d 1268, 1270–71 (11th Cir. 2009). It has its greatest force

when a case is on remand to the district court. “When an appellate court issues a

clear and precise mandate, . . . the district court is obligated to follow the

instruction. Neither the district court nor any party is free to ignore the law of the

case.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1516 (11th Cir. 1987).

“A district court when acting under an appellate court’s mandate, cannot vary it, or

examine it for any other purpose than execution; or give any other or further relief;

or review it, even for apparent error, upon a matter decided on appeal; or

intermeddle with it, further than to settle so much as has been remanded.” Id. at

1510–11 (quotation marks omitted).

Needless to say (or maybe not), a district court cannot amend, alter, or refuse

to apply an appellate court’s mandate simply because an attorney persuades the

court that the decision giving rise to the mandate is wrong, misguided, or unjust. A

district court can, of course, wax eloquent about how wrong the appellate court is,

but after the waxing wanes the mandate must be followed.

The mandate in our earlier decision in this case involving the Florida stores

did not leave room for confusion or genuine doubt. It was not vague or

ambiguous. Our instructions regarding those stores were clear:

[W]e conclude that the district court erred in finding the terms
ambiguous and proceeding . . . to construe the terms narrowly.
Instead, the court should have followed the holding in 99 Cent by
looking to the dictionary definitions, which instruct that “groceries”

14
 Case: 15-12990 Date Filed: 01/31/2018 Page: 15 of 35

includes food and “many household supplies (as soap, matches, paper
napkins)” and that sales area “includes fixtures and their proportionate
aisle space.” Because the district court erred in discerning and
applying Florida’s law, for these forty-one Florida stores, we reverse
the judgment of the district court and remand the case for a new trial
based on the definition of the terms “staple or fancy groceries” and
“sales area” under Florida law as pronounced by Florida’s Third
District Court of Appeals in 99 Cent.

Winn-Dixie, 746 F.3d at 1026 (citation and footnote omitted). And if that were not

enough, we restated in the last paragraph of the opinion:

In sum, we hold that, for forty-one Florida stores, the district court
misapplied Florida law in determining whether [d]efendants had
violated Winn–Dixie’s restrictive covenants. For these stores, we
reverse and remand for a new trial based on a definition of “staple or
fancy groceries” and “sales area” consistent with the holding of the
Florida Third District Court of Appeals in 99 Cent.

Id. at 1044–45 (footnote omitted).

There is no imprecision in those instructions, no room for evasive

interpretation, in short, there is no legitimate basis for applying what we said only

to a subset of the 41 Florida stores. We don’t know what else we could have said

other than, perhaps, “and we really mean it.” Well, we really did mean it. And we

still do.

The district court did not do what we instructed it to do because it was led

astray by the defendants’ attorneys. In their written opposition to Winn-Dixie’s

motion for summary judgment on remand, those attorneys acknowledged that, as to

the Florida stores, “[t]he Eleventh Circuit reversed [the district court’s] Judgment

15
 Case: 15-12990 Date Filed: 01/31/2018 Page: 16 of 35

and remanded the case for a new trial ‘based on the definition of the terms “staple

or fancy groceries” and “sales area” under Florida law as pronounced by Florida’s

Third District Court of Appeals in [99 Cent].’” 4 That ought to have been the end

of that.

But it wasn’t.5 The defendants’ attorneys contended that, as for the “stores

that opened prior to the issuance” of the 99 Cent decision in February 2002,

“Winn-Dixie’s grocery exclusives were undeniably ambiguous because there was

no established definition for either ‘sales area’ or ‘groceries’” before the 99 Cent

court issued that decision. So they argued: “Application of the subsequently

broadened definitions in 99 Cent would attach new legal consequences to

[d]efendants’ previously vested rights to operate their stores. Fundamental notions

of fairness and due process prohibit the retroactive application of the definition of

‘groceries’ and ‘sales area’ pronounced for the first time in 99 Cent.” As a result,

those attorneys insisted, “[t]he 99 Cent decision should not be retroactively applied

to leases entered into prior to February 2002 when [that] opinion was issued” —

despite this Court’s mandate that the district court must apply 99 Cent’s definitions

to all of the 41 Florida stores.

4
For the rest of the opinion, we refer to Big Lots and Dollar General as the “defendants”
because Dollar Tree is no longer a party.
5
No judge on this panel was on the panel that issued the initial decision. That fact, of
course, does not affect the law of the case doctrine or the mandate rule.

16
 Case: 15-12990 Date Filed: 01/31/2018 Page: 17 of 35

At the hearing on Winn-Dixie’s and Dollar General’s cross motions for

summary judgment, counsel for Big Lots and Dollar General were similarly blunt

in urging the district court to disregard our directive to apply 99 Cent’s definitions

to the Florida stores’ leases. After the district court stated that “it’s apparent what

the Eleventh Circuit thinks” about applying 99 Cent’s definitions of “groceries”

and “sales area” to the Florida stores, the defendants’ counsel argued that: “Your

Honor doesn’t need to get there” because all of Big Lots’ and Dollar General’s

Florida stores’ leases were executed before 2002. Counsel elaborated:

Your Honor can avoid that issue entirely by finding that 99 Cent,
while it may apply to [d]efendants’ stores that executed leases after
2002, does not apply to Big Lots and Dollar General stores that
executed leases prior to 2002, when there was no fair warning that
sales area would be construed broadly to include proportionate aisle
space and that groceries would include all manner of household
supplies.

The district court sought to make sure it was correctly understanding the

defendants’ argument, asking: “And so your argument is I should just say [99

Cent] doesn’t apply to you all[?]” Counsel answered: “Yes, Your Honor.”

That’s not all. Defendants’ counsel added mischaracterization to defiance by

stating that this Court, in our previous decision:

did not reverse with instructions that a specific definition be entered in
an order by this [c]ourt. It did not reverse and say this is the definition
that we are ordering this [c]ourt to adopt. It said, [w]e reverse and

17
 Case: 15-12990 Date Filed: 01/31/2018 Page: 18 of 35

remand, with instructions that [the district court] apply the general
analytical framework of 99 Cent.6

But, contrary to what counsel represented to the district court, this Court did

reverse with instructions for that court to adopt and follow the definitions from the

99 Cent decision. To repeat, in explaining why we were reversing the district

court’s judgment and ordering a new trial, we stated:

Because the district court erred in discerning and applying Florida’s
law, for these forty-one Florida stores, we reverse the judgment of the
district court and remand the case for a new trial based on the
definition of the terms “staple or fancy groceries” and “sales area”
under Florida law as pronounced by Florida’s Third District Court of
Appeals in 99 Cent.

Winn-Dixie, 746 F.3d at 1026 (footnote omitted). Counsel urged the district court

to disregard that clear directive: “I would . . . submit, first and foremost, that 99

Cent should not be applied, whether it’s the general analytical framework or the

specific holding because the stores at issue here are not bound by 99 Cent . . . .” 7

6
All of the quoted statements from the hearing urging the district court not to follow our
mandate were made by attorney Brian P. Watt of Troutman Sanders LLP. We mention that
because we do not want an unfair inference to be drawn that any of those statements and
misstatements were made by other attorneys who represented Big Lots and Dollar General in the
district court.
7
That was not the only mischaracterization by the defendants’ counsel. He also told the
district court that “99 Cent, to be perfectly clear, does not define groceries, it does not define
sales area, it does not p[re]scribe what proportionate aisle space means.” But “to be perfectly
clear,” the 99 Cent decision does indeed define groceries:
Groceries are generally defined as ‘articles of food and other goods sold by a
grocer,’ and a grocer is defined as ‘a dealer in staple food stuffs . . . and many
household supplies (as soap, matches, paper napkins).’ Employing this definition,
we conclude that the trial court tailored the relief granted too narrowly. The

18
 Case: 15-12990 Date Filed: 01/31/2018 Page: 19 of 35

But “first and foremost,” this Court had decided exactly the opposite and mandated

that the district court apply 99 Cent’s definitions to the 41 Florida stores. See id.

The district court asked counsel: “Are you arguing, then, that an injunction

shouldn’t issue, that the definition [of sales area] shouldn’t be applied to any of

these stores, what exactly is your argument?” And it asked: “Where does that

argument take us now, though? I mean, I understand it and I guess you probably

argued that to the Eleventh Circuit, but at this point, don’t we have to conclude that

groceries means more than food?” The district court questioned how it could come

up with definitions of the terms “groceries” and “sales area” different from the

ones that this Court had instructed it to apply: “But I mean, again, I don’t see how

I can get there. The Eleventh Circuit has told me I was wrong about [what the

terms mean]. . . . [I]t seems to me it’s apparent what the Eleventh Circuit thinks.”

Apparent though it was what this Court had thought, had said, and had told

the district court to do, counsel eventually persuaded the court not to do it. In its

order on the cross motions for summary judgment, the district court accepted the

commonly recognized definition of the term groceries includes more than just
food.
811 So. 2d at 722 (citation omitted). And as to “sales area,” the 99 Cent decision states that:
Limiting the amount of sales area to just the ‘footprint’ of the actual fixtures is not
a reasonable construction of the clause at issue. . . . Thus, on remand, the
temporary injunctive relief granted should be revised to make clear that the 500
square foot figure includes fixtures and their proportionate aisle space.
Id.

19
 Case: 15-12990 Date Filed: 01/31/2018 Page: 20 of 35

defendants’ position “that the 99 Cent case should not be applied retroactively to

[d]efendants’ leases executed before the date of that decision, which was February

20, 2002.” (Emphasis added.) And that is how the district court ruled: “I will not

apply 99 Cent’s definition of groceries or sales area to [d]efendants’ leases that

were executed prior to [the] date of the 99 Cent decision.”

In an effort to defend their position and the district court’s post-remand

ruling that the 99 Cent decision would not be applied to stores with leases executed

before February 20, 2002, the defendants argue that applying the 99 Cent

definitions to those leases would violate “fundamental notions of fairness and due

process.” And besides, they argue, the 99 Cent decision is wrong.

First, the defendants did not make either of those arguments in their briefs

when the case was before this Court the first time, before our first decision. They

could have. Instead, they contended that the 99 Cent decision was distinguishable

because of “numerous factual and legal differences,” none of which involved these

arguments. They argued that the “[d]istrict [c]ourt properly distinguished 99 Cent

from the case at bar, and found that it was not controlling,” but the court did not do

so based on any of the reasons they now assert. The defendants also could have

made their new, belated arguments in a petition for rehearing after our decision

was issued. But they didn’t bother to file one. Apparently, their idea of a good

strategy is not to fire all of one’s shots in the court of appeals but to save a couple

20
 Case: 15-12990 Date Filed: 01/31/2018 Page: 21 of 35

of rounds to shoot down the appellate decision after we send the case back to the

district court for our decision to be carried out. That is not a strategy that will or

should work. See Litman, 825 F.2d at 1511 (“Failure to honor [the law of the case

doctrine’s] commands can only result in chaos.”).

That the defendants did not raise those issues in their briefs in the first

appeal or in a petition for panel rehearing does not in any way undermine the

strength of the law of the case doctrine or the force of the mandate rule. See

Transamerica Leasing, Inc. v. Inst. of London Underwriters, 430 F.3d 1326, 1331

(11th Cir. 2005) (“The [law of the case] doctrine’s central purposes include

bringing an end to litigation, protecting against the agitation of settled issues, and

assuring that lower courts obey appellate orders.”). Put somewhat differently, an

argument or issue that was not expressly addressed but was decided by necessary

implication in the earlier decision is covered by the law of the case doctrine and the

mandate rule. See Am. Multi-Cinema, 579 F.3d at 1270–71; see also Friedman,

520 F.3d at 1294 (“The law of the case doctrine and the mandate rule apply to all

issues decided expressly or by necessary implication.”) (alterations and quotation

marks omitted). The new reasons the defendants now assert for not applying the

99 Cent decision were all decided, and rejected, by necessary implication in our

previous decision.

21
 Case: 15-12990 Date Filed: 01/31/2018 Page: 22 of 35

Even if we turned the system upside down and allowed our decisions to be

second-guessed in the district courts, the defendants’ belated arguments against

applying the 99 Cent decision are meritless anyway. The argument they stress is

that our application of the 99 Cent decision to leases executed before that decision

was issued violates “fundamental notions of fairness and due process.” They rely

on several decisions, including a criminal one, for the proposition that there is a

“strong presumption against retroactive application” of state and federal statutes

affecting contractual rights, property rights, or liberty interests. Of course, we are

talking about a judicial decision, not a statute. That major difference makes no

difference, they say, because “the 99 Cent decision had the same effect as a

statutory codification of definitions for ‘groceries’ and ‘sales area’ in this case.”

But so do a lot of judicial decisions, including most or all of the decisions defining

statutory terms.

A judicial decision is not, however, a statute. And as Justice Holmes once

put it, “[j]udicial decisions have had retrospective operation for near a thousand

years.” Kuhn v. Fairmont Coal Co., 215 U.S. 349, 372, 30 S. Ct. 140, 148 (1910)

(Holmes, J., dissenting); cf. Harper v. Va. Dep’t of Taxation, 509 U.S. 86, 97, 113

S. Ct. 2510, 2517 (1993) (“[In civil cases, when the Supreme] Court applies a rule

of federal law to the parties before it, that rule is the controlling interpretation of

federal law and must be given full retroactive effect . . . as to all events, regardless

22
 Case: 15-12990 Date Filed: 01/31/2018 Page: 23 of 35

of whether such events predate or postdate our announcement of the rule.”); Smith

v. Jones, 256 F.3d 1135, 1140 (11th Cir. 2001) (same). Judicial decisions operate

the same way in Florida, as well, having retroactive effect. See Robbat v. Robbat,

643 So. 2d 1153, 1156 (Fla. 4th DCA 1994) (“In saying what the common law is in

1981, the highest court in the state was stating by necessary implication what the

law had always been. The role of judges is only to find the law, not to make it or

state what it will be or might have been. . . . [W]hen a state’s highest court states

what appears to be partially prospective law, its decision should not be interpreted

to be any less retroactive than the court has itself expressly stated. There should be

the strongest presumption against implied prospectivity.”) (footnote omitted); see

also Phillips v. State, 623 So. 2d 621, 621 n.1 (Fla. 4th DCA 1993) (“As Justice

Scalia explained in his concurring opinion in Harper, ‘[T]he true traditional view is

that prospective decision-making is quite incompatible with the judicial power, and

that the courts have no authority to engage in the practice.’”) (quoting Harper, 509

U.S. at 106, 113 S. Ct. at 2522 (Scalia, J., concurring)); cf. Smith v. State, 598 So.

2d 1063, 1066 (Fla. 1992) (“[A]ny decision of this Court announcing a new rule of

law, or merely applying an established rule of law to a new or different factual

situation, must be given retrospective application by the courts of this state in

every case pending on direct review or not yet final.”). Unlike the enactment of a

23
 Case: 15-12990 Date Filed: 01/31/2018 Page: 24 of 35

statute, the 99 Cent decision did not create law; it stated what the terms “groceries”

and “sales area” had always meant. See Robbat, 643 So. 2d at 1156.

Not only that, but the defendants’ contention that the 99 Cent definitions

cannot be applied to leases executed before that decision was issued cannot be

reconciled with that decision itself. Under the defendants’ logic, the 99 Cent court

could not have applied the definitions of “groceries” and “sales area” to the leases

at issue in that case because the defendant would not have known what those terms

meant until the appellate decision in his own case was issued in 2002. But the 99

Cent court did apply the definitions of “groceries” and “sales area” it announced to

leases in that case which, of course, predated the issuance of the decision.

The defendants also argue that the 99 Cent decision is wrong as a matter of

Florida law about the definitions of “groceries” and “sales area,” suggesting that

was a good ground for the district court not to apply 99 Cent on remand. It is the

defendants’ argument that is wrong. State law is what the state appellate courts say

it is, and we are bound to apply a decision of a state appellate court about state law

even if we think that decision is wrong. See Silverberg v. Paine, Webber, Jackson

& Curtis, Inc., 710 F.2d 678, 690 (11th Cir. 1983) (“A federal court applying state

law is bound to adhere to decisions of the state’s intermediate appellate courts

absent some persuasive indication that the state’s highest court would decide the

issue otherwise. A federal court is bound by this rule whether or not the court

24
 Case: 15-12990 Date Filed: 01/31/2018 Page: 25 of 35

agrees with the reasoning on which the state court’s decision is based or the

outcome which the decision dictates.”) (citation omitted).

Finally, the defendants argue that the district court did not have to follow our

mandate because on remand they presented it with new evidence. See Ash v.

Tyson Foods, Inc., 664 F.3d 883, 891 (11th Cir. 2011). The new “evidence” they

point to is what they characterize as “multiple, inconsistent dictionary definitions

of ‘groceries’ and no recognized dictionary definition of ‘sales area,’” which

would contradict the 99 Cent court’s holding, which our previous decision recited,

that the dictionary definitions of the terms “groceries” and “sales area” are clear

and unambiguous. See Winn-Dixie, 746 F.3d at 1024. But definitions in

dictionaries are not evidence within the meaning of that exception to the law of the

case doctrine and, in any event, the exception does not apply when the new

evidence is “inconsistent with what the appellate court had adjudged.” Ash, 664

F.3d at 891 (quoting Doran v. Petroleum Mgmt. Corp., 576 F.2d 91, 93 (5th

Cir.1978)).

Because the district court did not apply the 99 Cent decision and its

definitions to all 41 of the Florida stores but only to the 14 with leases executed

after February 20, 2002 (the 14 Dollar Tree stores), we will remand with

instructions that the district court apply that decision and its definitions to the other

Florida stores as well.

25
 Case: 15-12990 Date Filed: 01/31/2018 Page: 26 of 35

That, however, is not the end of the issues involving the 99 Cent decision

and the Florida stores. Winn-Dixie also contends that the district court erred in its

application of 99 Cent to the 14 stores that it recognized were covered by that

decision.

B. The District Court’s Interpretation Of “Groceries” In
The Florida Grocery Exclusive Provisions

According to Winn-Dixie, the district court misinterpreted the definition of

“groceries” from the 99 Cent decision, defining the term too narrowly. The

defendants counter that this issue is moot because the 99 Cent definition of

“groceries” was applied only to 14 Dollar Tree stores, which were the only stores

that had leases dated after February 20, 2002, and Dollar Tree is no longer a party

to this appeal.

The issue is not moot. When this case is remanded yet again the 99 Cent

definition of “groceries” will be applied to the remaining Dollar General and Big

Lots stores in Florida. What that term means is a question of law that we review

de novo, and how we interpret the term will make a difference to the parties and

the outcome of the case. See Zinni v. ER Sols., Inc., 692 F.3d 1162, 1166 (11th

Cir. 2012) (“An issue is moot when it no longer presents a live controversy with

respect to which the court can give meaningful relief.”) (quotation marks omitted).

And the issue is ripe. See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d

1214, 1224 (11th Cir. 2004) (“In deciding whether a claim is ripe for adjudication

26
 Case: 15-12990 Date Filed: 01/31/2018 Page: 27 of 35

or review, we look primarily at two considerations: 1) the fitness of the issues for

judicial decision, and 2) the hardship to the parties of withholding court

consideration.”). The district court has already considered this issue and applied

its interpretation of “groceries.” Although it did not apply that interpretation to the

stores at issue in this appeal, the question of law will be the same on remand, and

we will answer it now.

Even though the district court disregarded our directive to apply the 99 Cent

definitions of “groceries” and “sales area” to all of the Florida stores, it did apply

that decision to 14 of them. The “who” was wrong –– underinclusive –– but the

“how” was right. In our previous decision we explained that the district court

should “follow[ ] the holding in 99 Cent by looking to the dictionary definitions,

which instruct that ‘groceries’ includes food and ‘many household supplies (as

soap, matches, paper napkins).’” Winn-Dixie, 746 F.3d at 1026. And as we have

already explained, the case was remanded for a new trial based on that definition of

“groceries.” See id. And in our decision we acknowledged that “it may not be

easy to pinpoint each item to be considered groceries,” id. at 1026 n.18 (quoting 99

Cent, 811 So. 2d at 722), but we “ha[d] faith in the district court’s ability to apply

both the specific holding and the general analytical framework” from the 99 Cent

decision in determining which items are “groceries,” id.

27
 Case: 15-12990 Date Filed: 01/31/2018 Page: 28 of 35

The 99 Cent decision explained that “[p]arties are bound by the clear words

of their agreements” and that, unless a document “contains a glossary of terms

requiring a different meaning, which is not the case here,” one “looks to the

dictionary” to find “the plain and ordinary meaning of words.” 811 So. 2d at 722

(citation omitted). It also stated that “groceries” are generally defined as “articles

of food and other goods sold by a grocer,” and a “grocer” is defined as “a dealer in

staple food stuffs . . . and many household supplies ([such] as soap, matches, paper

napkins).” Id. (quoting Webster’s New Int’l Dictionary (3d ed. 1986)).8 The 99

Cent court held that in that case “[t]he trial court’s failure to give the terms at issue

their plain and ordinary meaning mandates reversal.” Id.

Because 99 Cent’s definition of “groceries” includes “many household

supplies,” id. (emphasis added), it is clear that “groceries” includes some

“household supplies” but not all of them. It is not clear which “household

supplies” should be considered “groceries.” The grocery exclusive provisions in

Winn-Dixie’s leases do not define the term “household supplies.” That’s not

surprising, given that the term is not in those provisions but instead comes from the

99 Cent court’s definition of “groceries,” which is the term used in the leases. And
8
The 99 Cent decision also gave “sales area” its plain meaning, stating that the area
“includes fixtures and their proportionate aisle space” because “[s]hoppers do not arrive by
chopper, sending ropes down to hoist up their purchases” but instead “make their choices while
standing in aisles.” 99 Cent, 811 So. 2d at 722. Winn-Dixie does not challenge the district
court’s interpretation of the term “sales area,” presumably because the court simply applied the
same definition that the 99 Cent court provided: that “sales area” “includes fixtures and their
proportionate aisle space.”

28
 Case: 15-12990 Date Filed: 01/31/2018 Page: 29 of 35

although we can resort to the dictionary for the “plain and ordinary meaning” of

the terms “household” and “supplies,” a dictionary cannot tell us which “household

supplies” are “groceries.”

Even so, the 99 Cent decision did provide some guidance by listing three

examples of “household supplies” that are “groceries”: soap, matches, and paper

napkins. Id. Although each of those three items can be used outside of the kitchen

and in ways that are completely unrelated to food, we agree with the district court

that the common thread among them is “the preparation and service of food” and

“the maintenance of a clean kitchen (as the primary place where food is prepared).”

Based on those three examples, as well as the word “many” to indicate that not all

“household supplies” are groceries, it appears that only certain nonfood items fit

into the category of “groceries” as 99 Cent defined that term, and those nonfood

items must relate to food.9

Supporting that interpretation, which is more narrow than Winn-Dixie would

like, is the guiding principle that “covenants are strictly construed in favor of the

free and unrestricted use of property.” Esbin v. Erickson, 987 So. 2d 198, 201
9
Winn-Dixie argues that the district court should have considered its proposed products
list, which it says was “culled from authoritative industry publications,” in determining which
products were “groceries.” Even if the district court were entitled to use that products list if it
wished, the court was not required to use it based on our previous decision, the 99 Cent decision,
or other Florida law. We ordered the district court to apply the “specific holding and the general
analytical framework” of the 99 Cent decision in “pinpoint[ing] each item to be considered
groceries.” Winn-Dixie, 746 F.3d at 1026 n.18. We did not require it to consult any outside
sources to craft its list, see id., nor did the 99 Cent court suggest looking to any outside sources
except for dictionaries, see 811 So. 2d at 722.

29
 Case: 15-12990 Date Filed: 01/31/2018 Page: 30 of 35

(Fla. 3d DCA 2008) (quoting Norwood-Norland Homeowners’ Ass’n v. Dade

County, 511 So. 2d 1009, 1014 (Fla. 3d DCA 1987)). A narrow interpretation of

“household supplies” supports the free and unrestricted use of property by

permitting the defendants to sell more nonfood groceries than they could under a

broader, more restrictive interpretation of that term. By interpreting “household

supplies” as referring only to items “associated with the preparation and service of

food, as well as the maintenance of a clean kitchen (as the primary place where

food is prepared),” the district court’s interpretation comports with the 99 Cent

decision and with Florida law on interpreting restrictive covenants.

IV. THE ALABAMA STORES

In our previous opinion we instructed the district court to apply Alabama

law to interpret the terms of the grocery exclusive provisions for the Alabama

stores. See Winn-Dixie, 746 F.3d at 1027. Winn-Dixie contends that the district

court erred in ruling that, under Alabama law, the terms “groceries” and “sales

area” are ambiguous and must be construed narrowly against Winn-Dixie.

Alabama’s approach to interpreting restrictive covenants is similar to

Florida’s in that clear and unambiguous language in a restrictive covenant is given

its “plain and manifest meaning.” Vestlake Cmtys. Prop. Owners’ Ass’n v. Moon,

86 So. 3d 359, 365 (Ala. Civ. App. 2011) (quotation marks omitted). A term not

defined in a covenant or lease is not necessarily ambiguous. See Twin City Fire

30
 Case: 15-12990 Date Filed: 01/31/2018 Page: 31 of 35

Ins. Co. v. Alfa Mut. Ins. Co., 817 So. 2d 687, 692 (Ala. 2001). “[W]here

questions arise as to the meaning of an undefined word or phrase, the court should

simply give the undefined word or phrase the same meaning that a person of

ordinary intelligence would give it.” Id. A dictionary definition of a word is “the

interpretation that ordinary people would give [it].” Carpet Installation & Supplies

of Glenco v. Alfa Mut. Ins. Co., 628 So. 2d 560, 562 (Ala. 1993).

If, however, “a term is reasonably subject to more than one interpretation,” it

is ambiguous. See Hipsh v. Graham Creek Estates Owners Ass’n, Inc., 927 So. 2d

846, 849 (Ala. Civ. App. 2005) (alteration and quotation marks omitted). And

where the language of a restrictive covenant is ambiguous, “its construction will

not be extended by implication or include anything not plainly prohibited and all

doubts and ambiguities must be resolved against the party seeking enforcement.”

Moon, 86 So. 3d at 365 (quotation marks omitted). Just as in Florida, in Alabama

restrictions on the use of real property are not favored and are strictly construed in

favor of the free use of property. See Bon Aventure, L.L.C. v. Craig Dyas, L.L.C.,

3 So. 3d 859, 864 (Ala. 2008).

We did not address in our previous opinion whether the terms “groceries”

and “sales area” were ambiguous under Alabama law; we left that determination

up to the district court on remand. But in discussing whether the terms were

ambiguous under Florida law, we acknowledged that they were not defined in the

31
 Case: 15-12990 Date Filed: 01/31/2018 Page: 32 of 35

grocery exclusive provisions, and that the two terms “appear ambiguous” because

“‘groceries’ appears to admit at least two reasonable interpretations” and “the same

could be said of the term ‘sales area.’” Winn-Dixie, 746 F.3d at 1022–23. We

explained, however, that we could not “assess ambiguity in this case without

accounting for what [the 99 Cent] court has said . . . about these very terms.” Id. at

1023. We said the terms were not ambiguous as to the Florida stores because that

is an issue of Florida law and the 99 Cent court had “[found] these terms to be

clear and unambiguous.” Id. at 1024.

The 99 Cent decision does not help us “assess ambiguity” in the grocery

exclusive provisions for the Alabama stores because that decision “is binding only

as a pronouncement of Florida law.” Id. at 1026. And, as the district court and the

parties acknowledge, there are no Alabama cases defining the terms “groceries”

and “sales area” or holding that the two terms are clear and unambiguous.

We need not rehash our previous decision in this case to determine that,

without any binding authority holding that the terms are unambiguous, “groceries”

and “sales area,” as used in Winn-Dixie’s grocery exclusive provisions, are open to

more than one reasonable interpretation under Alabama law. Id. 1022–23. It is

enough to say that, in that state the term “groceries” could reasonably be

interpreted as referring to food only or to food plus nonfood products, and “sales

area” could reasonably be interpreted as referring to the physical space occupied

32
 Case: 15-12990 Date Filed: 01/31/2018 Page: 33 of 35

by shelves or to that shelf space plus aisle space. Id. And although we stated in

our previous opinion that “a review of [three] dictionaries reveals no evidence of a

contrary or changing definition” of “groceries” from the definition of “groceries”

that the 99 Cent court provided, see id. at 1025, we cannot say with assurance that

Alabama courts would reach the same conclusion. An Alabama court could

consult dictionaries other than those three, which might define the term “groceries”

to include only food products sold at a grocer’s store. Although the dictionaries

that the 99 Cent court and this Court consulted did not define the term that

narrowly, we recognize the possibility that other dictionaries may do so. 10

Winn-Dixie argues that, even though “99 Cent is not controlling in Alabama,

. . . its analysis is equally applicable” because Alabama courts also look to the

dictionary to determine the plain meaning of terms. We agree that Alabama courts

would engage in an analysis similar to that of the 99 Cent court and would likely

resort to dictionaries to define “groceries” and “sales area” because those two

terms are not defined in the grocery exclusives provisions. But Alabama courts

might reach a different conclusion than the Florida court did in 99 Cent and decide

that the term “groceries” is ambiguous. And they could conclude that, because

10
For example, the district court mentioned a definition of “grocery” from the Oxford
American College Dictionary (2002), which defined the term as “a grocer’s store or business;
items of food sold in such a store.”

33
 Case: 15-12990 Date Filed: 01/31/2018 Page: 34 of 35

“sales area” is not defined in dictionaries and is reasonably subject to more than

one interpretation, that term is also ambiguous.

Without any binding Alabama authority similar to Florida’s 99 Cent

decision, which held that the two terms have a “plain and ordinary meaning,” see

99 Cent, 811 So. 2d at 722, we are left to decide ourselves and we agree with the

district court that the terms are ambiguous because they are reasonably subject to

more than one interpretation. The ambiguity of those two terms in Alabama “must

be resolved against” Winn-Dixie, the party seeking enforcement, and in favor of

the free use of real property. See Moon, 86 So. 3d at 365 (quotation marks

omitted). Because the district court correctly decided that, we will affirm the

judgment as to the Alabama stores.

V. CONCLUSION

We REVERSE the district court’s judgment as to the Dollar General and

Big Lots stores in Florida and REMAND with instructions for the court to apply to

those stores, which had leases dated before February 20, 2002, the same definitions

of “groceries” and “sales area” that it applied to the Florida stores with leases dated

after February 20, 2002.11 We AFFIRM as to the Alabama stores.

11
Those definitions, as the district court articulated them, are as follows: The term “sales
area” includes “fixtures and their proportionate aisle space.” The term “groceries” includes
“food (excluding prepared foods) and beverages (excluding alcoholic beverages) as well as
‘many household supplies (as soap, matches, paper napkins).’” And “household supplies” that
are “groceries” include items “associated with the preparation and service of food, as well as the
maintenance of a clean kitchen (as the primary place where food is prepared).”

34
 Case: 15-12990 Date Filed: 01/31/2018 Page: 35 of 35

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

35