ASHLAND INC V. LEO LONG, JR., No. 12-35544 (9th Cir. 2014)
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The court issued a subsequent related opinion or order on March 21, 2014.
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FEB 18 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 12-35544 ASHLAND INC, Plaintiff - Appellant, D.C. No. 3:10-cv-05889-BHS v. MEMORANDUM* LEO H LONG, Jr.; THOMAS C LONG, Defendants - Appellees. No. 12-35775 ASHLAND INC, Plaintiff - Appellee, D.C. No. 3:10-cv-05889-BHS v. LEO H LONG, Jr.; THOMAS C LONG, Defendants - Appellants. Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding Argued and Submitted February 3, 2014 Seattle, Washington Before: FISHER, GOULD and CHRISTEN, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The district court did not err by concluding that the phrase Atlas Foundries Division (the Foundry Business ) in the Purchase and Sale Agreement is ambiguous. Under Washington law a court may permissibly consider all the circumstances surrounding the making of the contract to determine the parties mutual intent as expressed in the contract, Hearst Communications, Inc. v. Seattle Times Co., 115 P.3d 262, 266 (Wash. 2005) (citing Berg v. Hudesman, 801 P.2d 222, 228 (Wash. 1990)), so long as the evidence does not vary, contradict or modify the written word, Hollis v. Garwall, Inc., 974 P.2d 836, 843 (Wash. 1999). The district court s factual finding based on this evidence that the parties did not intend the defendants to assume the liabilities of the Long Foundry, other than the lease is not clearly erroneous. Accordingly, the defendants had no duty to indemnify Ashland. The district court correctly concluded that the parties agreement did not specifically provide[] for an award of attorney s fees to either party, and therefore an award of attorney s fees was inappropriate. See Wash. Rev. Code ยง 4.84.330; Bartlett v. Betlach, 146 P.3d 1235, 1239 (Wash. Ct. App. 2006). Because the district court did not reach the issue of costs, we remand for the district court to consider whether the defendants are entitled to their costs. AFFIRMED IN PART, VACATED IN PART AND REMANDED. 2
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