INSITU INC., Plaintiff-counter-defendant-Appellee, v. Mark KENT, Defendant-counter-claimant-Appellant.
No. 09-35737
United States Court of Appeals, Ninth Circuit
July 21, 2010
Argued and Submitted July 15, 2010.
Robert L. Christie, Esquire, Christie Law Group, PLLC, Seattle, WA, for Defendant-counter-claimant-Appellant.
MEMORANDUM **
Mark Kent appeals the summary judgment for Insitu, Inc. on his claims of fraudulent misrepresentation and promissory estoppel. We have jurisdiction pursuant to
Kent‘s case, and this appeal, turn on whether there is a triable issue of fact that he reasonably relied on misrepresentations that Insitu concedes, for purposes of the summary judgment, were made. As the district court concluded, he could not show reasonable reliance—an element of each cause of action, Sigman v. Stevens-Norton, Inc., 70 Wash.2d 915, 920, 425 P.2d 891, 895 (1967) (fraudulent misrepresentation); Jones v. Best, 134 Wash.2d 232, 950 P.2d 1, 5 (1998) (promissory estoppel)—given the “no-reliance” clause in the Separation and Release Agreement, and that he was a sophisticated businessman, was represented by counsel, had an adversarial relationship with the company, and was allowed twenty-one days to consider whether to sign the Agreement as well as a week thereafter to revoke his acceptance. See Kwiatkowski v. Drews, 142 Wash.App. 463, 176 P.3d 510, 517 (2008); Stewart v. Estate of Steiner, 122 Wash.App. 258, 93 P.3d 919, 927 (2004); cf. Helenius v. Chelius, 131 Wash.App. 421, 120 P.3d 954, 964 (2005).
We decline Kent‘s invitation for certification to the Washington Supreme Court. Making such a request for the first time on appeal is disfavored, Thompson v. Paul, 547 F.3d 1055, 1065 (9th Cir.2008), and in any event, we are sufficiently guided by decisions of the Washington appellate courts. See Ryman v. Sears, Roebuck & Co., 505 F.3d 993, 994 (9th Cir.2007).
AFFIRMED.