Instu Inc v. Mark Kent , 388 F. App'x 745 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
INSITU INC, No. 09-35737
Plaintiff-counter-defendant - D.C. No. 2:08-cv-03067-EFS
Appellee,
v. MEMORANDUM*
MARK KENT,
Defendant-counter-claimant -
Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted July 15, 2010
Seattle, Washington
Before: RYMER and N.R. SMITH, Circuit Judges, and CEBULL, Chief District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard F. Cebull, United States District Judge for the
District of Montana, sitting by designation.
Mark Kent appeals the summary judgment for Insitu, Inc. on his claims of
fraudulent misrepresentation and promissory estoppel. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Kent’s case, and this appeal, turn on whether there is a triable issue of fact
that he reasonably relied on misrepresentations that Insitu concedes, for purposes
of the summary judgment, were made. As the district court concluded, he could
not show reasonable reliance – an element of each cause of action, Sigman v.
Stevens-Norton, Inc., 425 P.2d 891, 920 (Wash. 1967) (fraudulent
misrepresentation); Jones v. Best, 950 P.2d 1, 5 (Wash. 1998) (promissory
estoppel) – given the “no-reliance” clause in the Separation and Release
Agreement, and that he was a sophisticated businessman, was represented by
counsel, had an adversarial relationship with the company, and was allowed
twenty-one days to consider whether to sign the Agreement as well as a week
thereafter to revoke his acceptance. See Kwiatkowski v. Drews, 176 P.3d 510, 517
(Wash. Ct. App. 2008); Stewart v. Estate of Steiner, 93 P.3d 919, 927 (Wash. Ct.
App. 2004); cf. Helenius v. Chelius, 120 P.3d 954, 964 (Wash. Ct. App. 2005).
We decline Kent’s invitation for certification to the Washington Supreme
Court. Making such a request for the first time on appeal is disfavored, Thompson
v. Paul, 547 F.3d 1055, 1065 (9th Cir. 2008), and in any event, we are sufficiently
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guided by decisions of the Washington appellate courts. See Ryman v. Sears,
Roebuck & Co., 505 F.3d 993, 994 (9th Cir. 2007).
AFFIRMED.
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