                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                         REVISED, MAY 28, 2004
                    UNITED STATES COURT OF APPEALS                 January 29, 2004
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                    ______________________________                     Clerk


                               No. 03-60246

                    ______________________________

                              CONAGRA, INC.

                                                     Plaintiff-Appellant,

                                  versus


              COUNTRY SKILLET CATFISH COMPANY, ET AL.,

                                                    Defendants-Appellees.


            Appeal from the United States District Court
              for the Northern District of Mississippi,
                         Greenville Division
                          No. 4:00CV246-M-B


Before GARWOOD, JONES, and STEWART Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           This case arises from the sale of a Mississippi catfish

business to a group of investors.          In conjunction with the sale,

ConAgra also temporarily “leased” certain employees to the divested

subsidiary.    ConAgra filed suit for breach of these agreements.

The district court, however, found primarily against ConAgra.              For




     *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
the reasons set forth below, we affirm in part and reverse in part

the district court’s judgement.

                                       I.    BACKGROUND

                  From    1971   through          1990,      ConAgra     owned          a     catfish

processing         business      in    Mississippi           and   operated         the     business

through an unincorporated division known as Country Skillet Catfish

Company (“Country Skillet”).1                 From 1991 until December 18, 1996,

ConAgra operated the catfish processing business as a joint venture

between       its        subsidiary,     Country            Skillet,     and      Fishco,        Inc.

(“Fishco”).            This joint venture was operated through a company

known as Confish, Inc. (“Confish”).2                        Confish’s profits and losses

were shared equally between Country Skillet and Fishco throughout

the course of the joint venture.

                  During that time, ConAgra paid the payroll and benefits

expenses for Confish’s salaried and hourly employees, which Confish

regularly reimbursed.                 Although this arrangement was informally

referred to between the parties as a “lease” of the employees, no

lease agreement, written or otherwise, ever existed. Additionally,

from       1971    until     December       18,    1996,       ConAgra      provided          pension

benefits          to   its   salaried       employees,          but    not     to       its   hourly

employees.         On December 18, 1996, ConAgra sold 100% of its Country


      1
            In 1991, Country            Skillet       was    incorporated    as     a   wholly-owned
subsidiary of ConAgra.
       2
            Confish is now known as Consolidated Catfish Companies, LLC, and
Country Skillet has changed its name to Country Select Catfish Company. However,
for clarity’s sake, we refer to these companies collectively as Confish.

                                                  2
Skillet stock to Richard Stevens, Tom Reed, and Mitchell Pearson

pursuant to a Stock Sale Agreement (“Sale Agreement”). The parties

also entered into a formal employee leasing agreement (“Leasing

Agreement”), which was incorporated into the terms of the Sale

Agreement.

            The Leasing Agreement had a maximum three-year term and

provided that all of the Confish personnel, both salaried and

hourly, would remain ConAgra employees for its duration.              In the

Leasing Agreement, Confish agreed to reimburse ConAgra for certain

employee-related expenses, including employee compensation and the

“costs” of fringe benefits.       The Leasing Agreement also permitted

the parties to terminate the agreement early.3           Both the Sale and

Leasing Agreements were negotiated primarily between Dwight Goslee,

a senior executive at ConAgra, and Stevens.

            Simultaneously,     ConAgra   was    also   negotiating   a    new

Collective Bargaining Agreement (“CBA”) for the Confish hourly

employees with the local United Food & Commercial Workers union

(“UFCW”).       During    the   course    of    these   negotiations,      Tom

Baumgardner, ConAgra’s union negotiator, contacted Don Winters,



     3
             The Leasing Agreement provided:

     It is specifically understood and agreed that Lessor shall have the
     right to immediately terminate this Agreement in the event Country
     Skillet defaults under the Promissory Note or defaults under or
     breaches any terms or conditions provided herein. In the event of
     any such termination, this Agreement will continue to govern the
     parties’ rights and obligations with respect to services performed
     prior to the date of termination.


                                      3
ConAgra’s Director of Employee Benefits, regarding a proposal to

include past and current pension benefits to the Confish hourly

employees in the new CBA.             Winters investigated the cost of

providing     these    benefits    and       provided   the    information    to

Baumgardner.     On March 19, 1997, Confish and UFCW executed a CBA

that included past and current pension benefits for the hourly

employees.

            Surprisingly, Goslee never contacted Winters about the

impending sale of Country Skillet, nor did he offer the ConAgra

employee benefits department the opportunity to review its terms.

Thus, the district court concluded that Baumgardner and Winters

remained     unaware    of   Goslee’s        negotiations     and   the   sale’s

implications as to ConAgra’s future pension liabilities.                     The

district court also found, and the parties do not dispute, that the

subject of continuing pension liabilities for hourly employees,

post-termination of the Lease Agreement, was never broached during

the negotiations, much less specifically negotiated between Goslee

and Stevens.4

            On December 31, 1998, approximately one year early, the

parties mutually terminated the Lease Agreement.                At that point,

ConAgra approached Confish concerning its responsibility under the



      4
            Conversely, during the negotiations, Goslee and Stevens did negotiate
post-termination liability for workers’ compensation benefits and the potential
cost of WARN Act liabilities. Confish agreed to fund those future costs and
paid, pursuant to the Lease Agreement, a $250,000 deposit to secure that
obligation.

                                         4
Lease Agreement   for    reimbursement    of   post-termination    pension

costs.   Confish took the position that the Lease Agreement did not

contemplate   transfer   of   these   post-termination   pension    costs.

Moreover, Confish disputed any liability to ConAgra for pension

costs incurred and paid during the term of the Lease Agreement,

which ConAgra billed, as it had in the past, in accordance with

Financial Accounting Standards Board Statement No. 87 (“FAS 87").

           Consequently, on January 11, 2000, ConAgra filed suit in

federal court against Confish for breach of the Lease Agreement.

ConAgra sought money damages for previously incurred pension costs,

a declaration that Confish was obligated to reimburse ConAgra for

post-termination pension costs, and attorneys’ fees and expenses.

Confish initially made two arguments in defense: (1) that it did

not owe any previous or future pension costs; and (2) “costs” only

included “contribution” or “out-of-pocket” costs actually incurred

— not the amount calculated in accordance with FAS 87.             Confish

also counterclaimed for breach of the Lease Agreement and asserted

that, during the Lease Agreement, it had overpaid ConAgra for

salaried employee pension costs by $43,286 through the use of FAS

87.   Stevens also joined as a counterclaim plaintiff in an effort




                                      5
to   recover    $50,000    he   claimed    Goslee    promised    upon   early

termination of Lease Agreement.5

            The parties waived a jury trial and a two-day bench trial

followed.      At the conclusion of the trial, and after considering

the parties’ post-trial written submissions, the district court

held that: (1) the Leasing Agreement obligated Confish to reimburse

ConAgra for all pension costs incurred and paid by ConAgra during

the term of the Leasing Agreement; (2) the Leasing Agreement did

not obligate Confish to continue to reimburse ConAgra for post-

termination pension costs; (3) Confish was only obligated to

reimburse ConAgra for “contribution costs” and not pension costs as

calculated under FAS 87; (4) ConAgra should receive $49,630.20 for

past pension costs; and (5) Stevens should receive $50,000 on his

counterclaim.

            The district court also denied ConAgra’s motion to amend

its complaint to add a claim for unjust enrichment and held, in the

alternative, that the claim could not be sustained.                Last, the

district court determined that each party would bear its own

attorneys’ fees and expenses. ConAgra timely appealed the decision

to this court.

                          II.   STANDARD OF REVIEW


      5
            On the eve of trial, Confish conceded that it owed ConAgra for past
pension costs in the amount of $94,802. This amount was arrived at by using the
“contribution costs” formula — not FAS 87. Moreover, Confish contended that it
only owed ConAgra the net amount of $49,630.20 after deducting non-pension
credits to which the parties had stipulated. ConAgra, of course, disputed the
calculation method, but otherwise agreed to the stipulations.

                                      6
            The district court’s legal conclusions are reviewed de

novo and its findings of fact are reviewed for clear error.       In re

Liljeberg Enterprises, Inc., 304 F.3d 410, 423 (5th Cir. 2002).

“Under a clear error standard, this court will reverse only if, on

the entire evidence, we are left with the definite and firm

conviction that a mistake has been made.”       Otto Candies, L.L.C. v.

Nippon Kaiji Kyokai Corp., 346 F.3d 530, 534 (5th Cir. 2003)

(citations and quotations omitted).

            As a court sitting in diversity, we are Erie-bound to

apply Mississippi substantive law.      In re Knight, 208 F.3d 514, 516

(5th Cir. 2000). The district court's interpretation of a contract,

including   the   initial   determination   whether   the   contract   is

ambiguous, is a conclusion of law.      Royer Homes of Miss., Inc. v.

Chandeleur Homes, Inc., 857 So. 2d 748, 751 (Miss. 2003)(citing

Mississippi Transp. Comm'n v. Ronald Adams Contractor, Inc., 753

So. 2d 1077, 1087 (Miss. 2000).     “The subsequent interpretation of

the ambiguous contract presents a finding of fact . . . .”        In re

Estate of Harris, 840 So. 2d 742, 745 (Miss. 2003).           Last, the

district court’s decision to deny a motion to amend will not be

disturbed absent an abuse of discretion.         See Nilsen v. City of

Moss Point, Miss., 621 F.2d 117, 122 (5th Cir. 1980).

                            III.   DISCUSSION

            ConAgra raises several arguments on appeal: (1) the

district court misconstrued Mississippi contract law; (2) Confish


                                    7
is obligated to reimburse it for pension costs in accordance with

FAS 87; (3) Confish must continue to reimburse it for post-

termination pension costs; (4) the district court erred in refusing

to allow it to amend its complaint to add a claim for unjust

enrichment;     (5)   it   could,   if    permitted,   sustain   an    unjust

enrichment claim; and (6) it is entitled to attorneys’ fees and

expenses under the Lease Agreement.          We address each argument in

turn.

                           A.   Breach of Contract

             The district court concluded that the Lease Agreement did

not obligate Confish to reimburse ConAgra for post-termination

pension costs. ConAgra offers two arguments on this point. First,

ConAgra argues that the district court misconstrued Mississippi

contract law, applying a heightened standard of review.               Second,

ConAgra claims that the Lease Agreement and the evidence produced

at   trial    establish     that    the   parties    contemplated     ongoing

reimbursement post-termination.

             Properly viewed, the district court’s opinion did not

misstate Mississippi contract law.         Its conclusions of law recite

various principles for the construction of contracts.                 As the

district court recognized, under Mississippi law, courts must

enforce unambiguous contracts as written.           Royer Homes, 857 So. 2d

at 751. Therefore, the court must first look to the “four corners”

of the contract to determine the parties’ intent.                Ivison v.

                                      8
Ivison, 762 So. 2d 329, 335 (Miss. 2000).                     However, if the

agreement is ambiguous, the court should consider extrinsic or

parol evidence to ascertain the contract’s meaning.                 See Pursue

Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990).

            The   district    court,        in   refusing   to   grant    summary

judgment, determined that the contract was ambiguous.               On appeal,

the parties do not dispute this conclusion and we agree.                 Thus, the

district court properly looked to parole evidence to inform its

decision concerning this woefully vague agreement.                Based on the

parties’ intent, the district court found that the post-termination

pension funding obligations were not transferred from ConAgra to

Confish, and that “these obligations cannot be shifted absent clear

contractual agreement.”

            The court based its conclusion on the admissible record

evidence “and the applicable rules of contract interpretation.”

The court’s language about a clear contractual agreement does not

imply   a   “heightened”     standard   of       contract   interpretation,    as

ConAgra insists.    Instead, the court found that, viewed in context

of all the applicable rules of contract interpretation, there was

no agreement to transfer the ongoing funding obligations to Confish

after the Lease Agreement terminated.

            Furthermore, the district court specifically found that

Stevens, acting for Confish, was unaware throughout the course of

the negotiations that retroactive pension benefits were being added

                                        9
to the hourly employees’ new CBA.           The issue was never the subject

of negotiation between the parties.               ConAgra does not seriously

challenge these findings.          Hence, we conclude that the district

court’s findings on this issue were not the product of clear error.

Accordingly, we affirm the district court’s ruling that the Lease

Agreement was ambiguous and that the parties, based upon the record

evidence, did not contemplate shifting post-termination pension

costs to Confish.6

                        B.   Calculation of “Costs”

            Next, ConAgra asserts that the district court erred in

its conclusion that the “costs” of pension benefits only included

actual   contribution     costs,    and     not   the   amount   calculated   in

accordance with FAS 87.        The district court agreed with Confish’s

argument that “costs” meant “out-of-pocket” costs, which the court

determined was consistent with the term’s plain meaning.7                     The

district court erred.

            The Lease Agreement provides that: “Lessor shall invoice

costs of fringe benefits to Lessee no less frequently than on a

monthly basis . . . .”           The Lease Agreement failed to define

“costs” and     the   parties    agree    that    the   definition   cannot    be

ascertained from the “four corners” of the document. Therefore, we


      6
            We also affirm the district court’s award of $50,000 to Stevens based
upon an oral contract. ConAgra does not dispute this aspect of the judgment.
      7
            On appeal, Confish refers to “actual contribution costs” as “out-of-
pocket costs.” These terms are interchangeable.

                                       10
must look to parol evidence to ascertain the parties’ intent.                    See

Pursue Energy, 558 So. 2d at 351-53.              In reaching its conclusion,

the district court found that the Restatement (Second) of Contracts

§ 201 specifically applied to this case.8                 We agree.    Section 201

states, in relevant part, that “where the parties have attached the

same meaning to a promise or agreement or a term thereof, it is

interpreted in accordance with that meaning.” (emphasis added); see

also Kight v. Sheppard Bldg. Supply, Inc., 537 So. 2d 1355, 1358

(Miss. 1989) (“[T]he construction which the parties have placed

upon       the   contract,   or   what    the   parties    to   the   contract    do

thereunder, is relevant extrinsic evidence, and often the best

evidence, of what the contract requires them to do.”) (citation

omitted).

                 In the present case, there is compelling record evidence

that the parties intended “costs” to be calculated in accordance

with FAS 87.          First, during the course of the informal leasing

arrangement, in effect between 1991 and December 18, 1996, Confish

reimbursed ConAgra for pension costs for salaried workers according

to FAS 87.         This fact is undisputed by the parties.               Moreover,

Confish      did    not   produce   any   evidence   that       the   formal   Lease

Agreement altered this particular arrangement or the parties’

understanding of the term “costs.”              Second, Stevens testified at


       8
            As the district court recognized, Mississippi courts often look to
the Restatement in resolving contract disputes. See Warwick v. Matheney, 603 So.
2d 330, 335 (Miss. 1995).

                                          11
trial that he was aware that ConAgra’s actuarial estimates of

pension costs were based on FAS 87.        Third and perhaps most

importantly, during the Lease Agreement, Confish reimbursed ConAgra

for pension costs in accordance with FAS 87.

           Taken together, these facts warrant the conclusion that

the parties understood “costs” to incorporate the FAS 87 standard.

The district court committed clear error in disregarding the

parties’ intent as to this contractual provision.      Confish was

required to reimburse ConAgra for all pension costs incurred during

the Lease Agreement in accordance with FAS 87.   Moreover, based on

our conclusion, Confish was not entitled to a credit for the

salaried employee pension benefits, which it had reimbursed ConAgra

during this period in accordance with FAS 87.      Because we are

unable to glean from the record the precise amount owed to Conagra,

we remand to the district court for a proper calculation of

damages.

                       C.   Unjust Enrichment

           ConAgra also appeals the district court’s denial of its

motion to amend its complaint to add a claim for unjust enrichment.

Seventeen months before trial, ConAgra moved for leave to amend its

complaint to add a claim for unjust enrichment.     The motion was

denied by a magistrate judge on May 29, 2001.        ConAgra never

appealed this order to the district court pursuant to Uniform Local

Rule 72.2(A) for the United States District Court for the Northern

                                 12
and Southern Districts of Mississippi.               Instead, at trial, ConAgra

attempted to elicit an opinion from its expert regarding the

alleged   savings     Confish       achieved    by    refusing      to   pay    post-

termination   pension    costs.        ConAgra       then   moved   to    amend   its

complaint to add a claim for unjust enrichment based upon its

expert’s opinion.

           Rule 15(a) of the Federal Rules of Civil Procedure

requires that leave to amend “be freely given when justice so

requires.”    ConAgra may amend its complaint if Confish consented,

either expressly or impliedly, to trial of the issue.                    See Fed. R.

Civ. P. 15(a).       Absent consent, the district court should have

considered    in   making     its   decision,    inter      alia,    undue     delay,

dilatory motive on the part of the movant, and undue prejudice to

the opposing party by virtue of allowing the amendment.                   See Moody

v. FMC Corp., 995 F.2d 63, 66 (5th Cir. 1993).                 Trial courts have

ample discretion in determining when justice requires permission to

amend.    See Zenith Radio Corp. v. Hazeltine Research, Inc., 401

U.S. 321, 330, 91 S.Ct. 795, 802 (1971).

           The     district    court    concluded       that   Confish     did    not

consent, in any manner, to the trial of an unjust enrichment claim.

Further, the district court determined that, under the factors set

forth in Rule 15(a), it would not grant ConAgra’s request.                     ConAgra

never attempted to appeal the magistrate judge’s initial rejection

to the district court.          Also, ConAgra did not raise the unjust


                                        13
enrichment claim as an issue to be tried in the pretrial order,

which was entered one year before trial began.                Accordingly, the

district court did not abuse its discretion.9

                   D.     Attorneys’ Fees and Expenses

           Last, ConAgra argues that it is entitled to attorneys’

fees and    expenses    under   the    Leasing    Agreement.         The   Leasing

Agreement provides that: “In any action to enforce any of the

provisions of this Agreement, the party seeking to enforce this

Agreement shall be entitled to recover costs and expenses of any

such litigation, including reasonable attorneys’ fees, in addition

to all of the rights and remedies at law.”

           Under    Mississippi       law,   “[i]t     is   well   settled    that

attorney’s fees are not to be awarded unless a statute or other

authority so provides.” Miss. Dep't of Wildlife, Fisheries & Parks

v. Miss. Wildlife Enforcement Officers Ass’n, 740 So. 2d 925, 937

(Miss.   1999).     “In    breach     of    contract    cases,     attorney   fees

generally are not awarded absent provision for such in the contract

or a finding of conduct so outrageous as to support an award of

punitive damages.”      Garner v. Hickman, 733 So.2d 191, 198 (Miss.

1999).




      9
            The district court alternatively held that ConAgra failed to state
a claim for unjust enrichment because there was an express written agreement
between the parties. However, having affirmed the district court’s denial of
ConAgra’s motion to amend its complaint, we need not reach this issue.

                                       14
           Here,     the   Lease     Agreement     specifically     afforded

“reasonable attorneys’ fees” and “expenses” to the party seeking to

“enforce” the contract.          ConAgra sought to enforce the Lease

Agreement, and it has prevailed on two of its substantive claims.

Consequently, it is entitled to recover reasonable attorneys’ fees

and expenses related to its successful enforcement efforts.

                               IV.   CONCLUSION

           For the foregoing reasons, we affirm the judgment of the

district court that the Lease Agreement did not contemplate post-

termination reimbursement of pension costs.            We also affirm the

district court’s decision to prohibit ConAgra from amending its

complaint to add a claim for unjust enrichment, and its judgment in

favor of Stevens for $50,000.          However, we reverse the district

court’s conclusion that “costs” referred to actual pension plan

contributions and not the FAS 87 standard.            We also reverse the

district   court’s    denial    of   ConAgra’s    request   for   reasonable

attorneys’ fees and expenses.

           Therefore, we       AFFIRM in part, REVERSE in part, and

REMAND, for a calculation of the allowable damages pursuant to FAS

87 and a determination of reasonable attorneys’ fees and expenses

pursuant to § 14 of the Lease Agreement.




                                      15
