     Case: 17-30113       Document: 00514473932         Page: 1    Date Filed: 05/15/2018




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                      No. 17-30113
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 15, 2018

MALIK & SONS, L.L.C.,                                                      Lyle W. Cayce
                                                                                Clerk
                Plaintiff – Appellee,

v.

CIRCLE K STORES, INCORPORATED,

                Defendant – Appellant.




                    Appeals from the United States District Court
                        for the Eastern District of Louisiana
                              USDC No. 2:15-CV-6938


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
           Malik & Sons, L.L.C. sued Circle K Stores, Inc. for breach of contract,
claiming that Circle K improperly terminated a lease agreement and failed to
pay rent. A jury returned a verdict for Malik. On appeal, Circle K challenges
the district court’s denial of Circle K’s motion for judgment as a matter of law,
specific jury interrogatories, specific jury instructions, various evidentiary




       * Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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rulings, and the supersedeas bond amount set by the district court.            We
AFFIRM.
                                        I.
      Malik owns property in Covington, Louisiana. Malik and Circle K began
lease negotiations about this property, and, on July 29, 2014, Malik signed and
sent a lease agreement to Circle K to sign.
      The first page of the lease agreement reads: “This Ground Lease
(“Lease”), dated for reference purposes as ________, 2014, is made and executed
by and between Malik and Sons, LLC (“Landlord”), and CIRCLE K STORES
INC., a Texas corporation (“Tenant”).” The parties agree that when Malik and
Circle K signed the lease, there was no date in that blank. On the last page of
the lease, there is a paragraph that reads: “IN WITNESS WHEREOF, the
parties hereto have duly executed this Lease as of the day and year first
written above.” The tenant’s obligations are “subject to Tenant’s satisfaction
or waiver of all the following conditions within Ninety Days (90 days) of the
full execution of this Lease (the “Feasibility Period”).”
      On August 28, 2014, Circle K signed the lease agreement. As required
by the lease agreement, Circle K deposited it in escrow, and on the next day,
an escrow agent wrote “October 7” in the blank on the first page of the lease
agreement. Later, Circle K terminated the lease agreement by sending a letter
to Malik. Circle K and Malik do not dispute that this termination was proper
under the lease agreement’s 90-day feasibility period. Circle K sent Malik a
letter on November 24, 2014 “rescinding the termination letter” and notifying
Malik that “the effective dates and timing in the lease dated October 7, 2014
are still valid and the lease is still valid.” On December 27, 2014, Circle K sent
a third letter to Malik to terminate the lease again, but Malik told Circle K
that its termination was untimely because it was not within the 90-day
feasibility period.
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      Malik filed a complaint seeking enforcement of the lease agreement’s
terms, damages, interest, and attorneys’ fees. Malik contended that the lease
was fully executed on August 28 when Circle K signed it. According to Malik,
the 90-day feasibility period expired November 26. Circle K and Malik both
moved for summary judgment, but the district court denied their motions. The
parties filed a second round of opposed motions for summary judgment, which
the district court denied, as well. The district court determined that the lease
agreement was ambiguous as a matter of law. It held that the intent of the
parties was a “genuine issue of material fact which must be decided on a full
trial on the merits.” The case went to trial, and the jury returned a verdict for
Malik. On appeal, Circle K contends that the district court made multiple
errors. According to Circle K, the district court erred: (1) by denying Circle K’s
motion for judgment as a matter of law; (2) by using “confusing and misleading”
jury interrogatories; (3) by failing to charge the jury properly; (4) by limiting
the testimony of two witnesses; (5) by not allowing Circle K to present evidence
that Malik did not mitigate its damages and not charging the jury on the duty
to mitigate damages; and (6) by setting an excessive supersedeas bond.
                                       II.
                                       A.
      We review de novo a district court’s denial of a motion for judgment as a
matter of law. Baisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498 (5th Cir.
2012). Such a motion must be denied “unless the facts and inferences point ‘so
strongly and overwhelmingly in the movant’s favor that reasonable jurors
could not reach a contrary conclusion.’”         Id. (quoting Flowers v. S. Reg’l
Physician Servs. Inc., 247 F.3d 229, 235 (5th Cir. 2001)). We are “especially
deferential” to a jury verdict. Id. at 498–99.
      Circle K contends that the district court erred in denying its motion for
judgment as a matter of law. Circle K argues that its termination was timely
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because its November 24 letter and the lease agreement formed a new contract,
making the lease agreement’s execution date October 7. Thus, insists Circle
K, its termination on December 27 was within the 90-day feasibility period.
According to Circle K, the district court should not have considered extrinsic
evidence in interpreting the contract. Alternatively, Circle K contends that
Malik, which sought to enforce the contract, failed to show that there was a
“meeting of the minds” for a contract with an execution date of August 28.
      Under Louisiana law, “[w]hen the words of a contract are clear and
explicit and lead to no absurd consequences, no further interpretation may be
made in search of the parties’ intent.” La. Civ. Code art. 2046. A contract is
ambiguous, as a matter of law, when its terms are “‘susceptible to more than
one interpretation,’ when ‘there is uncertainty as to its provisions,’ or when
‘the parties’ intent cannot be ascertained from the language used.’” Greenwood
950, L.L.C. v. Chesapeake Louisiana, L.P., 683 F.3d 666, 668 (5th Cir. 2012)
(quoting Sequoia Venture No. 2, Ltd. v. Cassidy, 42,426 (La. App. 2 Cir.
10/10/2007); 968 So. 2d 806, 809). If a contract is ambiguous, “[e]xtrinsic
evidence is admissible to interpret the intent behind an ambiguous provision.”
Id. at 668–69. The issue here is whether the contract “is susceptible to more
than one reasonable interpretation rendering it ambiguous and uncertain as
to the intention of the parties.” Dixie Campers, Inc. v. Vesely Co., 398 So. 2d
1087, 1089 (La. 1981).
      The district court did not err in denying Circle K’s motion for judgment
as a matter of law. The contract is ambiguous as to the execution date, so it
was proper for the district court to admit extrinsic evidence to determine the
intent of the parties. The “four corners” of the contract—the lease agreement
and November 24 letter—are susceptible to different interpretations as to the
execution date. The last page of the lease agreement states that the parties
have “duly executed this Lease as of the day and year first written above.”
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However, it is not clear what day and year is “written above.” The first page,
which gives the only date in the lease agreement, states that it is “dated for
reference purposes.” Circle K counters that because October 7 was the only
date written on the lease agreement, it must be the execution date referenced
on the last page of the lease. Malik argues that that date was not the execution
date because the escrow agent wrote it in after both parties had signed the
lease.
         Circle K offers a plausible interpretation, but Malik offers an alternative,
credible interpretation to Circle K’s proposed interpretation.             It seems
equally—if not more likely—that the “day and year first written above” is
referencing a date the parties should have written on the last page. Therefore,
although the last page references an execution date “written above,” there is
no date on that page. The only other date in the document is labeled as “for
reference purposes.” Even though Circle K is correct that parties “are free to
specify the date of a contract’s execution,” the issue here is whether they did.
         The November 24 letter only contributes to the ambiguity. Even though
it references October 7, it expressly provides that the “dates and timing in the
lease are still valid.” It does not identify an execution date but rather seems
to be, in fact, using October 7 “for reference purposes,” as instructed by the first
page of the lease agreement. As such, the issue of identifying the execution
date is not resolved.
         At trial, different witnesses testified that “execution” meant signing by
both parties. The escrow agent testified that she wrote “October 7” on the
contract without direction from the parties. Reasonable jurors could believe
that Circle K and Malik did not intend for the execution date to be selected by
an escrow agent but rather to be when both parties had signed the agreement.
The November 24 letter by its own language suggests a consistency of timeline:
“the dates and timing in the lease are still valid.” Given that reasonable jurors
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                                  No. 17-30113
could believe that the lease’s execution date was August 24, the district court
properly denied Circle K’s motion for judgment as a matter of law.
       As for Circle K’s contention about the lack of a “meeting of the minds,”
even though Circle K witnesses testified that they thought the execution date
was October 7, reasonable jurors could discredit their testimony. Reasonable
jurors could believe that the November 24 letter, drafted by Circle K, was
meant to reinstate the August 24 timeline and that Circle K was changing its
story at trial. Accepting Malik’s argument, reasonable jurors could believe that
if Circle K intended to change the execution date, Circle K probably would not
have said in its November 24 letter that “the dates and timing in the lease are
still valid.”
       For these reasons, we conclude that the district court did not err when it
denied Circle K’s motion for judgment as a matter of law.
                                        B.
       The next issue is whether the district court erred in its jury
interrogatories.   “Generally, a trial court is afforded great latitude in the
framing and structure of the instructions and special interrogatories given to
the jury, so much so since we are loath to disturb that discretion absent a
showing of abuse of discretion.” Barton’s Disposal Serv., Inc. v. Tiger Corp.,
886 F.2d 1430, 1434 (5th Cir. 1989) (internal citations omitted).
       On appeal, Circle K first contends that the district court misallocated the
burden of proof in its jury interrogatories.          Question 3 of the jury
interrogatories asked whether Circle K proved “by a preponderance of the
evidence that the parties agreed to modify the date on which the lease was
fully executed to be October 7, 2014 by virtue of the November 24, 2014 letter.”
Circle K notes that Malik, as the plaintiff, had the burden to prove that the
November 24 letter created an enforceable contract.
       When we evaluate jury interrogatories, we consider:
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      (i) whether, when read as a whole and in conjunction with the
      general charge the interrogatories adequately presented the
      contested issues to the jury; (ii) whether the submission of the
      issues to the jury was “fair”; and (iii) whether the “ultimate
      questions of fact” were clearly submitted to the jury.

Goodman v. Harris Cty., 571 F.3d 388, 401 (5th Cir. 2009) (quoting Barton’s
Disposal Serv., Inc., 886 F.2d at 1435). The trial court must “adequately and
clearly” present each contested issue to the jury, but “academic perfection is
not demanded.” Barton’s Disposal Serv., Inc., 886 F.2d at 1435.
      It is true that Malik had the burden to prove the existence of an
enforceable contract, but Question 3 did not upset this balance.           Read in
context with the preceding questions, Question 3 clearly offered a possible
affirmative defense for Circle K.
      Question 1 required the jury to determine whether Malik proved the
existence of an enforceable contract, and Question 2 asked whether that
contract was executed in August or October. At that point, if the jury found in
favor of Circle K in either of those questions, the interrogatories would stop,
and Malik would lose. Only after the jury found that Malik proved that there
was an enforceable contract, executed in August, did the verdict form ask
whether the parties, by the November 24 letter, agreed to modify the execution
date. Given the context of the other jury interrogatories, Question 3 was not
improper, and the district court did not commit reversible error.
      Circle K’s other complaints about the jury interrogatories are likewise
without merit. “[A] trial court is afforded great latitude in the framing and
structure of the instructions and special interrogatories given to the jury.” Id.
at 1434. Here, the district court did not commit reversible error in its jury
interrogatories.




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                                  No. 17-30113
                                        C.
      Circle K also insists that the district court did not properly charge the
jury on the applicable law. When reviewing a jury charge, we consider whether
“the charge as a whole is a correct statement of the law and whether it clearly
instructs the jury on the law applicable to the facts.” United States v. Ibarra-
Zelaya, 465 F.3d 596, 607 (5th Cir. 2006). We reverse only when “the charge
as a whole creates substantial and ineradicable doubt whether the jury has
been properly guided in its deliberations.”      NewCSI, Inc. v. Staffing 360
Solutions, Inc., 865 F.3d 251, 263 (5th Cir. 2017) (quoting Reyes-Mata v. IBP,
Inc., 299 F.3d 504, 506 (5th Cir. 2002)).
      Circle K makes seven objections to the jury charge: (1) the omission of
an instruction on counteroffers; (2) the instruction on interpreting standard
form contracts; (3) the instruction on ambiguity and interpreting the lease; (4)
the instruction on unilateral error; (5) the omission of an instruction on duty
to disclose; (6) the instruction on the definition of execution; and (7) the
omission of an instruction on waiver.
      Federal Rule of Civil Procedure 51 requires parties to object to the jury
charge before the jury retires, “stating distinctly the matter objected to and the
grounds for the objection.” Fed. R. Civ. P. 51; see also Jimenez v. Wood County,
660 F.3d 841, 845 (5th Cir. 2011) (en banc) (holding that “a specific, formal, on-
the-record objection is required” to challenge jury instructions).         When
objections to the jury charge are “brought forth with specificity for the first
time on appeal,” they fail on “compelling procedural grounds.” Patton v. S. Bell
Tel. & Tel. Co., 387 F.2d 360, 361 (5th Cir. 1968). “The objection must have
been made on the specific ‘ground raised on appeal, rather than a general
objection to the instructions as a whole or an objection on a different ground.’”
Jimenez, 660 F.3d at 845 (quoting Fiber Sys. Int’l, Inc. v. Roehrs, 470 F.3d 1150,
1158 (5th Cir. 2006)).
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      At trial, Circle K did not state the specific grounds for many of its
objections and arguably did not comply with Rule 51. Instead, Circle K rattled
them off by number—even after the district court advised that “it would be
better” if Circle K made a specific objection. In any event, none of Circle K’s
challenges to the jury instructions succeed. A review of the jury charge as a
whole demonstrates that the district court was well within its discretion when
it gave this jury charge. We have no doubt—much less “a substantial and
ineradicable doubt”—that the jury was properly instructed on the law. See
NewCSI, Inc., 865 F.3d at 263 (quoting Reyes-Mata, 299 F.3d at 506).
                                       D.
      Circle K asserts that the district court made numerous erroneous
evidentiary rulings. We review a district court’s decision granting or denying
a motion in limine for abuse of discretion and require a showing of prejudice.
Hesling v. CSX Transp. Inc., 396 F.3d 632, 643 (5th Cir. 2005).
      Circle K argues that the district court abused its discretion because it
unduly limited Scott Dusang’s testimony. Granting Malik’s motion in limine,
the district court limited Dusang’s testimony to “facts he personally
experienced or observed.” We conclude that the district court did not abuse its
discretion. Federal Rule of Evidence 701 limits the testimony of a lay witness
to his opinion “rationally based on the witness’s perception.” Fed. R. Evid. 701.
Circle K could have retained expert witnesses to testify about the legal
significance of the terms of the lease agreement, but it did not.
      Similarly, Circle K challenges the evidentiary rulings concerning the
testimony of Dr. Naveed Malik. The district court allowed Dr. Malik to testify
on direct examination about his belief that August 28 was the execution date
but prevented him from testifying “about the basis for such claims.” A review
of the record shows that these rulings were within the discretion of the district


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                                  No. 17-30113
court. We likewise conclude that the district court did not abuse its discretion
in limiting Dr. Malik’s testimony.
                                       E.
      Circle K argues that the district court erred because it did not allow
Circle K to present evidence that Malik failed to mitigate damages and did not
charge the jury on Malik’s duty to mitigate damages. According to Circle K,
Malik was required to “make reasonable efforts to mitigate the damage caused
by the obligor’s failure to perform.” Even though mitigation evidence would be
allowed ordinarily, the district court correctly determined that the terms of
this contract did not require Malik to mitigate its damages by reletting the
premises. The district court did not commit reversible error by not allowing
Circle K’s evidence and not charging the jury on this issue.
                                       F.
      Finally, Circle K asserts that the district court set an excessive
supersedeas bond amount. Circle K does not articulate how this amount
constitutes reversible error and offers no case law, arguably forfeiting its claim
of error here. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th Cir.
2010). In any event, Local Rule 62.2 of the Eastern District of Louisiana gives
the district court the discretion to set a bond amount at more than 20% of the
judgment. On this record, the district court did not abuse its discretion in
setting the supersedeas bond.
                                       III.
      For these reasons, we AFFIRM.




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