Larry Steveson, a Washington citizen v. UNITED SUBCONTRACTORS, INC, a Utah corporation doing business in the State of Washington

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY STEVESON, a Washington
citizen,
Plaintiff - Appellant,
v.
UNITED SUBCONTRACTORS, INC, a
Utah corporation doing business in the
State of Washington,
Defendant - Appellee.
No. 09-35001
D.C. No. 3:08-cv-05558-FDB
MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
Franklin D. Burgess, District Judge, Presiding
Submitted December 9, 2009**
Seattle, Washington
Before: BEEZER, GOULD and TALLMAN, Circuit Judges.
Larry Steveson brought this diversity action against his former employer,
United Subcontractors, Inc. (“USI”), claiming that, in terminating his employment
FILED
DEC 11 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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following a merger and consolidation of business operations, USI breached the
employment contract and withheld compensation in violation of Washington state
law. He also sought to have the district court invalidate the employment contract’s
restrictive covenant limiting his ability to compete as a commissioned sales
representative of insulation products and to award him injunctive and declaratory
relief. The district court granted USI’s motion to dismiss all claims, finding that
(1) there was no breach of contract because Steveson was an at-will employee at
the time of his termination, (2) even if USI had breached the contract, Washington
Revised Code section 49.52.050 provided no remedy for future compensation, and
(3) the covenant not to compete was applicable whether a person was terminated
with or without cause. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
First, Steveson claims that USI breached his contract by terminating his
employment without just cause. Washington law states that “[a] contract for
employment is subject to the same rules that govern the construction of other
contracts.” Comfort & Fleming Ins. Brokers, Inc. v. Hoxsey, 613 P.2d 138, 141
(Wash. Ct. App. 1980). “Washington . . . follow[s] the objective manifestation
theory of contracts.” Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d 262,
267 (Wash. 2005). This means that “the subjective intent of the parties is generally

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irrelevant if the intent can be determined from the actual words used.” Id. (citing
City of Everett v. Estate of Sumstad, 631 P.2d 366, 367 (Wash. 1981)).
Washington courts “do not interpret what was intended to be written but what was
[actually] written.” Id. (citation omitted). Furthermore, Washington law forbids
the introduction of extrinsic evidence, including a party’s subjective intent, “to
‘show an intention independent of the instrument’ or to ‘vary, contradict or modify
the written word.’” Id. (quoting Hollis v. Garwall, Inc., 974 P.2d 836, 843 (Wash.
1999)).
The language of the contract is clear to us, though Steveson argues that his
subjective intent was different from the written and signed contractual provisions.
Here, Paragraph 3 of the employment contract states that Steveson was “terminable
at will . . . in accordance with the notice provisions of Paragraph 10 of [the]
Agreement.” The notice provisions are then set forth in Paragraph 10, and, after
negotiations between the parties, were rewritten to state that termination for “just
cause” requires written notice seven days in advance of termination, and
termination “for cause” is effective immediately upon receipt of notice by the
employee. By so amending the standard USI employment contract, Steveson did
not, as he argues, change his status as an at-will employee. Instead, he and USI
amended the notification provisions to exclude notice for termination without

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To the extent Steveson raises new arguments on appeal outside his1
opposition in the district court to USI’s motion to dismiss, those claims are deemed
abandoned and are not properly before this court. See Walsh v. Nev. Dep’t of
Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006).
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cause. While this alteration is enforceable, it does not affect the legal status of
Steveson’s at-will employment. The district court properly found that the contract
remained terminable at either party’s discretion.
Second, Steveson claims that he is entitled to damages for intentional
withholding of compensation. This claim is premised on the fact that USI
breached its contract with Steveson. Because Steveson’s breach of contract claim
fails, see supra, so too does his allegation that USI willfully withheld
compensation in violation of Washington Revised Code sections 49.52.050,
49.52.070, and 49.48.410. Additionally, these provisions are not a statutory basis
for computing damages which flow from a breach of the contract.
Finally, Steveson argues that the district court erred by dismissing his claims
relating to the enforceability of the employment contract’s covenant not to compete
because he was terminated without just cause. The contract specifically states that1
the restrictive covenant is applicable whether an employee is terminated “with or

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without cause.” The district court did not err in dismissing Steveson’s claims
regarding the contract’s covenant not to compete.
AFFIRMED.

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