Brent Nicholson v. Thrifty Payless, Inc. ( 2020 )

NOT FOR PUBLICATION FILED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.
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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.
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