                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                             MAR 21 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

ASHLAND INC,                                    No. 12-35544

             Plaintiff - Appellant,             D.C. No. 3:10-cv-05889-BHS

       v.
                                                AMENDED MEMORANDUM*
LEO H LONG, Jr.; THOMAS C LONG,

             Defendants - Appellees.

ASHLAND INC,                                    No. 12-35775

             Plaintiff - Appellee,              D.C. No. 3:10-cv-05889-BHS

       v.

LEO H LONG, Jr.; THOMAS C LONG,

             Defendants - Appellants.

                   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



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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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