Global Baristas LLC v. TC Global Inc. , 668 F. App'x 785 ( 2016 )

FILED
NOT FOR PUBLICATION
SEP 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLOBAL BARISTAS LLC, No. 14-35715
Appellant, D.C. No. 2:14-cv-00431-RSL
v.
MEMORANDUM*
TC GLOBAL INC,
Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, Senior District Judge, Presiding
Submitted September 2, 2016**
Seattle, Washington
Before: HAWKINS, McKEOWN, and DAVIS,*** Circuit Judges.
Global Baristas, LLC (“Buyer”) appeals the district court’s order affirming the
bankruptcy court’s grant of partial summary judgment in favor of debtor TC Global,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S. Court
of Appeals for the Fourth Circuit, sitting by designation.
Inc. (“Seller”). The bankruptcy court held that Buyer had breached a provision of an
asset purchase agreement between it and Seller, which provided for certain post-
closing adjustments to the purchase price.
The district court did not err by affirming the bankruptcy court’s grant of partial
summary judgment to Seller on the breach of contract claim. The contract
unambiguously required Buyer to make specific adjustments to the purchase price
following closing. These were not items left to Buyer’s discretion, but mandatory
obligations: “Buyer shall” deliver its proposed adjustments within thirty days, and
“the [p]urchase [p]rice shall be adjusted” upward/downward based on various factors
set forth in great detail in the agreement. The use of the phrase “if any” before the
defined term “Buyer Adjustment Amounts” in the contract clearly refers only to the
theoretical possibility that there could be an adjustment of $0 because many of the
adjustment provisions used pre-closing ballpark estimates that would not trigger post-
closing adjustments to the purchase price unless the actual amounts wound up being
significantly greater or significantly lower than expectations. It does nothing,
however, to render the contract ambiguous or convert Buyer’s clearly defined and
mandatory obligation to engage in the adjustment process into an optional action on
Buyer’s part.
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Nor did the bankruptcy court abuse its discretion by declining to continue the
summary judgment hearing to allow Buyer to propound discovery. Buyer sought a
continuance to conduct discovery into the subjective intent of the parties to the
contract, but extrinsic evidence of intent is generally irrelevant if the parties’ intent
can be determined from the words actually used, as it could with this unambiguous
contract. See Brogan & Anensen LLC v. Lamphiear, 202 P.3d 960, 961-62 (Wash.
2009) (per curiam) (extrinsic evidence cannot be used to modify or contradict terms
of agreement or show an intention independent of the contract).
Buyer’s argument that the bankruptcy court failed to determine that its breach
of contract caused the damages claimed by Seller is raised for the first time on appeal,
and we deem it waived. See Hillis v. Heineman, 626 F.3d 1014, 1019 (9th Cir. 2010).
AFFIRMED.
3