Unpublished Disposition, 890 F.2d 420 (9th Cir. 1987)

MEMORANDUM^* 

Carolyn Cross appeals an order of the district court enforcing a settlement agreement between the parties. She contends that the district court erred in not finding that the defendants breached a material provision of the agreement, thereby excusing her nonperformance under the agreement. We reject her contention, and we affirm.

DISCUSSION

Cross argues that the district court should not have enforced the settlement agreement because the defendants breached the time provision of Paragraph 8 of the settlement agreement. That paragraph provides:

It is the intention of the parties that final closing, including endorsement and surrender of the stock certificates, and payment of all sums due, shall be completed within 24 hours of receipt of Board approval and finalization of the terms and conditions of settlement documents and Court papers.

The record shows that the agreement was signed on August 3, 1987. Although that document contained all of the agreed-upon terms and conditions, it also provided that final settlement documents were to be prepared by counsel for the parties. By August 7, Itron's Board of Directors had approved the settlement and issued a check payable to Cross in full settlement of her claims. That same morning, however, the attorneys continued to confer over language in the final settlement documents.

On August 10 the parties met to finalize the settlement. When it became clear that the settlement was not going to close that day, "Mrs. Cross became very angry, [and] said in substance ... 'I am ready to close this transaction pursuant to the outline of settlement, they've refused to pay me the money and agree to appropriate settlement documents. That's it.' " (Cross's attorney's affidavit). She angrily left the law offices. Her attorney believed that Mrs. Cross "thought the deal was off after Monday, August 10."

Cross correctly argues that a party who breaches a settlement cannot recover for the nonperformance of the other party. See Seattle Totems Hockey Club v. National Hockey League, 783 F.2d 1347, 1352 (9th Cir.) (applying Washington law), cert. denied, 479 U.S. 932 (1986); Parsons Supply, Inc. v. Smith, 22 Wn. App. 520, 523, 591 P.2d 821, 823 (1979) (a breaching party cannot demand performance from the nonbreaching party). The district court concluded, however, that the defendants did not breach the settlement agreement, and therefore they were not barred from enforcing the settlement. The court found that:

any delay caused was the result of the attorneys' reasonable attempts to put together the final language of the agreement. The principal cause of the delay was plaintiff's refusal to disclose the names of the owners of the stock she alleged that she had gifted away, and her refusal to sell all the stock that she still actually owned, despite her agreement to do so. There is no basis for finding defendants had materially breached the agreement due to this delay.

That finding is fully supported by the record and is not clearly erroneous. See Northwest Acceptance Corp. v. Lynnwood Equipment, 841 F.2d 918, 923 (9th Cir. 1988) (clearly erroneous standard applies when district court's inquiry extends beyond the words of the agreement and focuses on related facts). There is therefore no merit to Cross's argument that the defendants violated Paragraph 8 by extending negotiations over the language to be included in the final settlement papers. The short time between execution of the initial agreement on August 3 and the parties' failure to finalize the documents by August 10 does not constitute a breach of Paragraph 8. See, e.g., Sheehan v. Atlanta Intern. Ins. Co., 812 F.2d 465, 470 (9th Cir. 1987) (reasonable delays in fulfilling the terms of a settlement do not constitute breach).

AFFIRMED.