                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 11 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



LARRY STEVESON, a Washington                     No. 09-35001
citizen,
                                                 D.C. No. 3:08-cv-05558-FDB
             Plaintiff - Appellant,

  v.                                             MEMORANDUM *

UNITED SUBCONTRACTORS, INC, a
Utah corporation doing business in the
State of Washington,

             Defendant - Appellee.



                   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

        *
             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).
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


                                          2
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


                                           3
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.1 The contract specifically states that

the restrictive covenant is applicable whether an employee is terminated “with or




      1
        To the extent Steveson raises new arguments on appeal outside his
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).

                                            4
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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