Surinderjit Singh Brar; Balvir Kaur Brar v. Thrifty Payless Inc, a California corporation

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SURINDERJIT SINGH BRAR; BALVIR
KAUR BRAR,
Plaintiffs - Appellants,
v.
THRIFTY PAYLESS INC, a California
corporation; FIRST AMERICAN TITLE
INSURANCE COMPANY, a California
corporation,
Defendants - Appellees.
No. 10-35715
D.C. No. 2:08-cv-01777-RSM
MEMORANDUM*
SURINDERJIT SINGH BRAR; BALVIR
KAUR BRAR,
Plaintiffs - Appellees,
v.
THRIFTY PAYLESS INC, a California
corporation,
Defendant - Appellant.
No. 10-35741
D.C. No. 2:08-cv-01777-RSM
FILED
DEC 07 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The parties agree Washington law applies to the contract at issue.1
2
Appeals from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 5, 2011
Seattle, Washington
Before: TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.
Plaintiffs-Appellants Surinderjit Singh Brar and Balvir Kaur Brar (together,
the “Brars”) appeal the decision by the district court, following a bench trial,
awarding Defendant-Appellee Thrifty Payless Inc. (“Thrifty”) the earnest money
paid by the Brars and Counterclaim-Defendants Amarjeet Singh and Aswinder
Brar (collectively, the “Buyers”) pursuant to a failed commercial real estate sales
agreement. Thrifty cross-appeals the court’s denial of prejudgement interest. We
have jurisdiction in this diversity action, 28 U.S.C. § 1291, and we affirm the
award of the earnest money to Thrifty, reverse the denial of prejudgment interest,
and remand for entry of an amended judgment. As the parties are familiar with the
facts, we repeat them here only as necessary to explain our decision.
We review a district court’s findings of fact following a bench trial for clear
error and its conclusions of law de novo. Jarvis v. K2 Inc., 486 F.3d 526, 529 (9th
Cir. 2007). Under Washington law, “[i]f a contract requires performance by both1

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parties, the party claiming nonperformance of the other must first establish as a
matter of fact the party’s own performance,” unless that performance was excused.
Willener v. Sweeting, 730 P.2d 45, 49 (Wash. 1986). In Willener, the Washington
Supreme Court held that where neither party to a real estate contract performed, the
prospective buyers were entitled to a refund of their earnest money. Id.
The Brars concede that the Buyers failed to tender the purchase price on the
closing date but, relying on Willener, contend that Thrifty is not entitled to keep
the earnest money because it allegedly failed to
maintain the Property [until the closing date] in the same
manner as prior hereto pursuant to its normal course of
business (such maintenance obligation not including
extraordinary capital expenditures or expenditures not
incurred in such normal course of business), subject to
normal wear and tear . . . or other events beyond [its]
control . . . .
In particular, the Brars point to the condition of the floors on the closing date.
Unlike Willener, however, where the sellers “did not satisfy the
performance required by the agreement,” 730 P.2d at 50-51, here, the district court
correctly determined that Thrifty satisfied its contractual obligations, finding that
the Brars’ contention that “Thrifty failed to maintain the property in its existing
condition up to closing . . . is incorrect.” Thrifty’s lease of the property to
Liquidation World, Inc. (“LWI”) was not a material breach. Indeed, the Buyers

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acquiesced to—and negotiated to continue—LWI’s lease. Nor was Thrifty’s
failure to finalize repairs to the floor by the closing date a material breach.
Thrifty’s expert, whom the district court found to be “highly credible,” testified
that the cracks in the floor were not the result of LWI’s use of the property and
likely had been there for some time; the Brars offered no evidence to the contrary.
Any repairs to the floor were voluntarily undertaken by Thrifty in an effort to close
the sale.
Thrifty satisfied its contractual obligations by tendering marketable title on
the closing date and, thus, the earnest money was forfeited to Thrifty upon the
Buyers’ default. We therefore affirm the district court’s award of the earnest
money to Thrifty.
The Brars and Thrifty agree that the district court erred in denying
prejudgment interest. Subsequent to the district court’s decision, the Washington
Supreme Court clarified that “prejudgment interest may be awarded not only when
one party has improperly used the funds, but also when one party is improperly
deprived of those funds.” Forbes v. Am. Bldg. Maint. Co. W., 240 P.3d 790, 794
(Wash. 2010) (emphasis added). Having been deprived of the “use value” of the
earnest money, which was held in escrow by the title company, Thrifty is entitled
to prejudgment interest. Accordingly, we reverse the district court’s denial of

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prejudgment interest and remand for entry of an amended judgment against the
Buyers with interest at the Washington statutory rate of twelve percent per annum,
Wash. Rev. Code § 19.52.010(1), from the date of the failed closing.
Costs on both appeals shall be awarded to Thrifty.
In No. 10-35715, the judgment is AFFIRMED. In No. 10-35741, the order
is REVERSED and REMANDED with directions.

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