* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

January 4, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30872

Summary Calendar

H&H, LLC,

Plaintiff-Appellant-Cross-Appellee,

v.

CWI-WHITE OAKS LANDFILL, LLC,

Defendant-Appellee-Cross-Appellant.

Appeals from the United States District Court for the

Western District of Louisiana, Monroe, La

3:04CV0977

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

H&H, LLC (“H&H”) challenges the district court’s denial of its

motion for a new trial, arguing that the district court should have

decided a royalty dispute as a matter of law and, in the

alternative, that the jury’s finding was against the great weight

of the evidence. We affirm. 
2

I. BACKGROUND

H&H and CWI-White Oaks Landfill, LLC (“CWI”) entered into a

royalty agreement in 1999 which is now the basis for this

contractual dispute. 

H&H and CWI executed a “Permit Purchase and Sale Agreement”

on February 2, 1999, with regard to the sale of approximately 105

acres of property owned by H&H in Monroe, Ouachita Parish,

Louisiana. On the same day, H&H, CWI, and a third party, Littleton

Enterprises, Inc., (“Littleton”) also executed another “Permit

Purchase and Sale Agreement” that concerned the sale of Littleton’s

Type III solid waste landfill permit for the White Oaks Landfill on

the aforementioned land. Littleton never held a permit for Type I

or Type II waste. 

On May 3, 1999, H&H sold the 105 acres to CWI in accord with

the terms of the agreement, and H&H, CWI, and Littleton executed a

“Royalty Agreement” incorporating the terms and provisions of the

Purchase and Sale Agreement. 

More than four years later, in August, 2003, CWI obtained the

required permits for Type I and Type II solid waste, and began

receiving and disposing of that waste in the landfill. H&H brought

suit in Louisiana state court in April, 2004, and CWI subsequently

removed the case to federal court. 

Among various claims, H&H argued at trial that CWI owed a 5%

royalty on revenue collected from the receipt and disposal of all
1Both parties agree that Type I waste consists of industrial

waste, while Type II wastes comprise household garbage. Type III

is generally the less hazardous (and therefore less lucrative)

category, consisting primarily of construction and demolition

debris, wood waste, and yard trash. 

3

types of solid waste at the site, encompassing Types I, II, and III

solid waste.1 CWI countered that the Royalty Agreement only

entitled H&H to a royalty from the receipt and disposal of Type III

waste and did not include Types I and II. 

A jury trial began on May 9, 2005, in Monroe, Louisiana.

Neither party objected to the jury instructions or juror

interrogatories. On May 11, 2005, the jury answered

interrogatories and found by a preponderance of the evidence that,

under the Royalty Agreement, H&H was entitled a 5% royalty on money

collected by CWI for “Type III waste only.” The jury found

favorably for H&H as to certain other aspects of the litigation,

including that the royalty applied to the use of all 105 acres sold

by H&H. On May 20, 2005, H&H filed a motion for a new trial

solely on the issue of whether the royalty applied to all solid

waste, or only to Type III waste. H&H argued that the jury’s

verdict was not supported by any evidence in the record and was

contradictory to the contract’s “clear and unambiguous language.”

The district court denied H&H’s motion, and it appeals. 

H&H now argues that the district court should have decided the

royalty dispute as a matter of law and, in the alternative, that

the jury’s finding was against the great weight of the evidence.
4

CWI cross-appeals, arguing that in the event that a new trial is

granted, it should be granted as to all issues and not merely the

single issue adverse to H&H. 

II. DISCUSSION

Whether a contract is ambiguous is a question of law, which we

review de novo. See Hidden Oaks Ltd. v. City of Austin, 138 F.3d

1036, 1048 (5th Cir. 1998). Once a contract’s ambiguity has been

determined, however, “the fact finder’s interpretation deserves

traditional deference.” Id. We review a district court’s denial

of a motion for a new trial for abuse of discretion. Seidman v.

Am. Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991). A

district court “abuses its discretion by denying a new trial only

when there is an absolute absence of evidence to support the jury’s

verdict.” Id.

H&H argues that the court erred as a matter of law, thus

abusing its discretion, by failing to “follow the clear and

unambiguous contract terms.” Indeed, under Louisiana law, no

deference should be given to a jury’s contract finding when the

meaning of the contract can be determined solely from the words

upon its face. See Schroeder v. Bd. of Supervisors, 591 So.2d 342,

345 (La. 1991). Through their own trial tactics, however, H&H

conceded the contract’s ambiguity by introducing extrinsic evidence

at trial. 

H&H was the first party to introduce extrinsic evidence — a
5

memorandum relating to the parties’ intent on the royalty issue —

and called several witnesses to testify as to that intent. As the

trial court correctly found, H&H cannot depart from the four

corners of the contract to argue in its favor during the trial,

then abruptly reverse course and argue that the contract was

unambiguous after the jury is unpersuaded by their extrinsic

evidence. See, e.g., Brown v. Presbyterian Healthcare Servs., 101

F.3d 1324, 1332 (5th Cir. 1996)(“an appellant may not generally

complain on appeal of errors he has himself induced or invited.”).

When H&H was the first to introduce extrinsic evidence to argue the

intent of the contract, it effectively surrendered the argument

that the court erred in allowing the jury to consider extrinsic

evidence. 

Turning to whether the jury’s finding was against the great

weight of the evidence, and given the absence of a timely Rule 50

motion, we cannot find that the district abused its discretion in

denying the motion for a new trial unless “there is an absolute

absence of evidence to support the jury’s verdict.” Seidman, 923

F.2d at 1140. Littleton never possessed a permit for Type I or

Type II waste on the land, and therefore could not have sold the

rights to the receipt of such waste. Moreover, while H&H called

more witnesses than CWI to support their interpretation of the

contract, the Fifth Circuit’s approved pattern jury instructions

clearly state, “[t[he testimony of a single witness may be
6

sufficient to prove any fact, even if a greater number of witnesses

may have testified to the contrary” if the jury believes that

witness. Fifth Circuit Pattern Jury Instructions (Civil), § 2.18

(Consideration of the Evidence) (West 2006). Steven Witmer

testified on behalf of CWI that the royalty agreement encompassed

only Type III waste. Given that H&H presented no evidence

suggesting Witmer was any less credible than their own witnesses,

we cannot find an absolute absence of evidence supporting the

jury’s verdict. 

Because the district court did not abuse its discretion in

denying H&H’s motion for a new trial, we need not reach CWI’s

argument that a new trial, if granted, should include all issues.

For the foregoing reasons, we AFFIRM the district court.