SUPERVALU HOLDINGS, INC., a Missouri corporation v. RICHARD R. MORRIS, JR., co-trustee of the Barbara Morris Testamentary Trust

* 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NOT FOR PUBLICATION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
SUPERVALU HOLDINGS, INC., a
Missouri corporation,
Plaintiff - Appellant,
v.
RICHARD R. MORRIS, JR., co-trustee of
the Barbara Morris Testamentary Trust;
RICHARD A. MORRIS, co-trustee of the
Barbara Morris Testamentary Trust;
BARBARA MORRIS TESTAMENTARY
TRUST; RICHARD R. MORRIS, JR.,
individually,
Defendants - Appellees.
No. 11-35011
D.C. No. 3:09-cv-05351-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted January 10, 2012
Seattle, Washington
Before: GRABER, FISHER, and RAWLINSON, Circuit Judges.
FILED
JUN 25 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Appellant Supervalu Holdings, Inc. (Supervalu) challenges the district
court’s partial grant of summary judgment in favor of Appellees Richard R.
Morris, Jr. and Richard A. Morris, and the district court’s denial of Supervalu’s
motion for reconsideration. During negotiations for a new lease, Supervalu and
Morris disputed the meaning of the undefined term “loan constant,” as utilized in
an option provision in the new lease.
The district court did not abuse its discretion when it held that Supervalu’s
hearsay evidence of the parties’ understanding of the meaning of “loan constant”
was inadmissible. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 (9th Cir.
2010) (“We cannot declare that the district court reached an illogical or implausible
result by excluding apparent hearsay or documents without sufficient foundational
support as the rules of evidence prescribe . . .”); see also Intermountain Fair Hous.
Council v. Boise Rescue Mission Ministries, 657 F.3d 988, 998 (9th Cir. 2011)
(“Conclusory affidavits that do not affirmatively show personal knowledge of
specific facts are insufficient to defeat summary judgment.”) (citation and
alteration omitted).
Even if admissible, Supervalu’s extrinsic evidence did not raise a material
factual dispute regarding the parties’ respective interpretations of the meaning of
“loan constant.” The extrinsic evidence was limited to Supervalu’s subjective

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intent during negotiations subsequent to the signing of the original lease. See
Renfro v. Kaur, 235 P.3d 800, 803 (Wash. Ct. App. 2010) (“[E]xtrinsic evidence
may not be used (1) to establish a party’s unilateral or subjective intent as to the
meaning of a contract word or term; (2) to show an intention independent of the
instrument; or (3) to vary, contradict, or modify the written word.”) (citation and
internal quotation marks omitted).
Because Supervalu failed to provide any contrary definition of “loan
constant” that was adopted by the parties, the district court properly granted
summary judgment premised on the ordinary meaning of “loan constant.” See
Hearst Commc’ns, Inc. v. Seattle Times Co., 115 P.3d 262, 267 (Wash. 2005) (en
banc) (“We generally give words in a contract their ordinary, usual, and popular
meaning unless the entirety of the agreement clearly demonstrates a contrary
intent. We do not interpret what was intended to be written but what was
written.”) (citations omitted).
Additionally, summary judgment was warranted because Supervalu
conditioned its exercise of the option on Morris’ acceptance of Supervalu’s
interpretation of the disputed term “loan constant.” See Duprey v. Donahoe, 323
P.2d 903, 906 (Wash. 1958) (“If the optionee attaches conditions not warranted by

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the terms of the option to his acceptance . . . this itself amounts to a rejection . . .”)
(citation omitted).
AFFIRMED.

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