Brent Nicholson v. Thrifty Payless, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 3, 2020
• Docket: 19-35753
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRENT NICHOLSON, an individual, No. 19-35753

Plaintiff-Appellant, D.C. No. 2:12-cv-01121-RSL

and MEMORANDUM* NMP CONCORD II LLC, a Washington Limited Liability Company; et al.,

Plaintiffs,

v.

THRIFTY PAYLESS, INC., a California corporation; RITE AID CORPORATION, a Delaware corporation,

Defendants-Appellees,

and

NO ONE TO BLAINE, LLC, a Washington limited liability company,

Counter-defendant.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Submitted September 1, 2020** Seattle, Washington

Before: McKEOWN and VANDYKE, Circuit Judges, and KENDALL, *** District Judge.

Brent Nicholson appeals the district court’s second order on remand, holding

that the money deposited in the escrow account in lieu of a supersedeas bond

serves as security for the entirety of the judgment and award in this case. The

parties are familiar with the facts, so we do not repeat them here. We affirm.

Nicholson’s preferred interpretation that the Escrow Deposit Agreement

secures only his personal liability is not supported by the objective manifestations

of the parties’ intent at the time the contract was formed. See Int’l Marine

Underwriters v. ABCD Marine, LLC, 179 Wash. 2d 274, 282 (2013). The Escrow

Deposit Agreement’s stated purpose—“to maintain funds awarded to [the

defendants] in a judgment and attorney fee award entered” in this case—does not

limit the use of the deposited fund to Nicholson’s personal liability. Admissible

extrinsic evidence also contradicts Nicholson’s preferred interpretation. See Berg

v. Hudesman, 115 Wash. 2d 657, 667 (1990). For example, the Amended Lease—

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Virginia M. Kendall, United States District Judge for the Northern District of Illinois, sitting by designation.

2 which contains a provision describing the purpose of the escrow account—shows

that the parties agreed to use the escrow fund “as security for payment of Tenant’s

Claim,” which includes “a judgment and an award for attorneys’ fees” in this case

not only “against . . . Brent Nicholson,” but also “other Plaintiffs.”

Nicholson’s other proffered extrinsic evidence is inadmissible for

determining the intent of the contracting parties. See Hollis v. Garwall, Inc., 137

Wash. 2d 683, 695 (1999) (“admissible extrinsic evidence does not include[]

[e]vidence of a party’s unilateral or subjective intent as to the meaning of a

contract word or term” or “[e]vidence that would vary, contradict, or modify the

written word”). Therefore, the district court properly interpreted the Escrow

Deposit Agreement based on “the actual language of the agreement,” and also “the

contract as a whole, the subject matter and objective of the contract, all the

circumstances surrounding the making of the contract, the subsequent acts and

conduct of the parties to the contract, and the reasonableness of respective

interpretations advocated by the parties.” Tanner Elec. Co-op. v. Puget Sound

Power & Light Co., 128 Wash. 2d 656, 674 (1996) (internal quotation marks and

citation omitted).

AFFIRMED.