Ashland Inc v. LEO HLONG, Jr.; THOMAS CLONG

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASHLAND INC,
Plaintiff - Appellant,
v.
LEO H LONG, Jr.; THOMAS C LONG,
Defendants - Appellees.
No. 12-35544
D.C. No. 3:10-cv-05889-BHS
AMENDED MEMORANDUM *
ASHLAND INC,
Plaintiff - Appellee,
v.
LEO H LONG, Jr.; THOMAS C LONG,
Defendants - Appellants.
No. 12-35775
D.C. No. 3:10-cv-05889-BHS
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
FILED
MAR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Before: FISHER, GOULD and CHRISTEN, Circuit Judges.
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 § 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.
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Each side shall bear its own costs of appeal.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
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