Wilkening v. Veolia ES Evergreen Landfill, Inc. et al
ORDER on damages re hearing held 2/22/2012. Ordered by Judge Hugh Lawson on 3/7/2012. (nbp)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
KURT F. WILKENING,
Civil Action 7:10-CV-122 (HL)
VEOLIA ES EVERGREEN LANDFILL,
INC., a Georgia corporation; and VEOLIA
ES PECAN ROW LANDFILL, LLC, a
Georgia limited liability corporation,
The Court held a hearing on February 22, 2012 to determine the amount of
damages to which Plaintiff is entitled.
Upon review of the documentary evidence provided, along with the testimony
of Joseph Stevens, the Court finds that Plaintiff is entitled an award of unpaid host
fees in the amount of $707,411.01. Plaintiff is also entitled to post-judgment interest
at the applicable rate. Plaintiff’s request for attorney’s fees is denied.
The real dispute is whether Plaintiff is entitled to recover pre-judgment interest
on the award of $707,411.01. Under Georgia law, “[a]ll liquidated demands, where
by agreement or otherwise the sum to be paid is fixed or certain, bear interest from
the time the party shall become liable and bound to pay them; if payable on demand,
they shall bear interest from the time of the demand.” O.C.G.A. § 7-4-15. Mandatory
pre-judgment interest under O.C.G.A. § 7-4-15 is allowed only on liquidated claims.
Kitchen Intern., Inc. v. Evans Cabinet Corp., 310 Ga. App. 648, 655, 714 S.E.2d 139
(2011). For damages to be liquidated, the damages must be in a certain and fixed
amount, “a sum which cannot be changed by proof; it is so much or nothing.” GMC
Group, Inc. v. Harsco Corp., 304 Ga. App. 183, 183(1), 695 S.E.2d 702 (2010)
(citation and punctuation omitted). “Mere conclusory allegations of the amount owed
are insufficient to render the damages liquidated; ‘[o]therwise every case where a
specific amount is stated in the complaint as due and owing would be turned into a
liquidated amount by the default.’” Id. (quoting T.A.I. Computer v. CLN Enters., 237
Ga. App. 646, 647(1)(a), 516 S.E.2d 340 (1999)). “A demand is not liquidated where
its amount could only be established by a factfinder.” Marchelleta v. Seay Const.
Servs., Inc., 265 Ga. App. 23, 27, 593 S.E.2d 64 (2004) (quotations and punctuation
The Court finds that the damages in this case were unliquidated, which means
Plaintiff is not entitled to pre-judgment interest under O.C.G.A. § 7-4-15. While
Plaintiff was entitled to $1 per ton of waste delivered to the Pecan Row Landfill, the
ultimate amount due him was not definite until the entry of this Order, and was
changed by the proof. The Court agrees with Defendant that if the damages were in
fact liquidated, it would not have been necessary for Plaintiff to engage Mr. Stevens
to calculate the amount due as a result of the contract breach. Plaintiff’s damages
have only become liquidated upon entry of this Order, which means Plaintiff is not
entitled to pre-judgment interest.
While O.C.G.A. § 13-6-13 provides for the allowance of pre-judgment interest
in breach of contract cases, even where the damages are not liquidated, Braner v. S.
Trust Ins. Co., 255 Ga. 117, 119(1), 335 S.E.2d 547 (1985), the Court declines to
award pre-judgment interest in this case.
The Clerk of Court is directed to enter judgment in Plaintiff’s favor in the
amount of $707,411.01, with post-judgment interest to accrue at the Court’s
SO ORDERED, this the 7th day of March, 2012.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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