IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30113

MALIK & SONS, L.L.C., 

 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should not be published and is not precedent except under the limited circumstances set forth 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.

United States Court of Appeals

Fifth Circuit

FILED

May 15, 2018

Lyle W. Cayce

Clerk

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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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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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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. IbarraZelaya, 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, onthe-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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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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