106 F.3d 409
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
SERVICE AMERICA CORP., a Delaware corporation, Plaintiff-Appellant,
v.
CITY OF SEATTLE, a municipal corporation of the State of
Washington, Defendant-Appellee.
No. 95-36171.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 9, 1997.
Decided Jan. 16, 1997.
Before: WRIGHT, CANBY and TASHIMA, Circuit Judges.
MEMORANDUM*
This case requires us to decide whether summary judgment for the City of Seattle was granted properly where the City was liable for damages under a contract if it permanently discontinued its operation of a facility and where it closed the facility for the final fourteen months of the contract, demolished most of the building, renovated it, and resumed operation under a new name. We review de novo a grant of summary judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996).
The parties agree there is no material issue of fact in dispute and that the issue under Washington contract law is whether the City permanently discontinued its operation of the Seattle Center Coliseum. Service America argues that the City did so when it demolished the Coliseum and then constructed on the same site the Key Arena.
We decline to interpret the phrase "permanently discontinue its operation of any facility" to apply to the City's closure of the Coliseum for a sixteen-month renovation. That interpretation would distort the meaning of "permanently discontinue," which is the language chosen by the contracting parties. We agree with the City that it partially demolished, renovated and renamed the facility and resumed substantially the same operation in the renovated facility. It did not permanently discontinue its operation of the facility. The contract does not hold the City liable for closures that were not permanent.
We affirm the grant of summary judgment to the City and grant its request for attorney's fees and costs on appeal under Section XXIX(N) of its contract with Service America. We transfer determination of the amount of such costs and fees to the district court as part of its determination of costs and fees incurred in that court, which has been stayed and deferred pending the outcome of this appeal. See Ninth Cir.R. 39-1.8.
AFFIRMED [and determination of amount of fees and costs transferred].
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3