                           NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                          JAN 15 2016

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S. COURT OF APPEALS




FEDERAL DEPOSIT INSURANCE                        No. 13-15636
CORPORATION, as Receiver for Valley
Capital Bank, N.A., a National                   D.C. No. 2:10-cv-01178-GMS
Association,

              Plaintiff - Appellee,              MEMORANDUM*

  v.

FRANK D. ORTWINE; POLLY ANN
ORTWINE, husband and wife;
INTERBANC INVESTMENT
PARTNERS, L.P., an Arizona limited
partnership,

              Defendants - Appellants.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                          Submitted November 16, 2015**
                             San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN, RAWLINSON, and DAVIS,*** Circuit Judges.

      Appellant Frank Ortwine (Ortwine) appeals from a judgment of the district

court, following a bench trial, finding him liable for breach of a loan agreement.

      Ortwine asserts that the district court violated Arizona’s parol evidence rule

by considering extrinsic evidence to alter and modify the terms of a general release

provision included in his severance agreement. Ortwine posits that the general

release’s phrase “including, but not limited to,” was rendered meaningless by the

district court’s conclusion that the parties intended for the provision to release

them only from employment-related claims. Ortwine’s claim lacks merit.

      Under Arizona law, a court initially “considers all of the proffered evidence

to determine its relevance to the parties’ intent . . .” Taylor v. State Farm Mut.

Auto. Ins. Co., 854 P.2d 1134, 1139 (Ariz. 1993). It is only after the parties’ intent

is ascertained that the court excludes “evidence that contradicts or varies the

meaning of the

agreement. . . .” Id. (citation omitted).

      The extrinsic evidence demonstrated the parties’ intent that the general

release apply only to any employment-related claims. Importantly, the bank could



        ***
            The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

                                            2
not legally release Ortwine from the loan without approval from the Office of the

Comptroller of the Currency. In addition, Ortwine acknowledged that the actual

severance agreement never referenced the loan. Further, the Chief Credit Officer

and the Chief Operating Officer of the lending bank both testified that they did not

promise Ortwine that he would be relieved from his obligation to repay the loan.

Most telling was Ortwine’s subsequent conduct. After several demands for

payment from the bank, Ortwine never expressed his belief that he was relieved

from paying the loan. To the contrary, he actually acknowledged his delinquency,

and told the bank’s then-President that he was “working on it.”

      The evidence considered by the court did not vary or contradict the

severance agreement’s general release provision. Rather, the evidence elucidated

the intention of the parties to limit the general release to employment claims. The

district court committed no error in considering this evidence. See id. (explaining

that if the contract language is “reasonably susceptible” to the interpretation

suggested by the extrinsic evidence, the evidence is admissible to determine the

parties’ intended meaning).

      AFFIRMED.




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