MEMORANDUM*

In 1983, Ellanor Ann Fondren (Fondren), plaintiff/appellee, sued R.D. Schmidt, R.D. Schmidt, Inc., Interplan, Inc., Interplan Leasing Corp. (collectively "Schmidt"), and Research Analysis For Finances, S.A. (RAFSA)1, defendants. Fondren claimed that she had been damaged by numerous acts of defendants while Schmidt was serving as her financial advisor. Fondren alleged that the defendant's actions violated both Federal and state law. This appeal arises out of an agreement by the parties to settle this dispute.

Both Schmidt and Fondren agree that Nevada law applies to this case.

Although we apply state substantive law to determine the validity of the settlement agreement, we apply a federal standard of review. See Nevada VTN v. General Insurance Co. of America, 834 F.2d 770, 773 (9th Cir.1987) (applying Federal standard of review in diversity case).

On October 11, 1989, Fondren filed a "Motion to Declare the Terms of an Agreed upon Settlement" pursuant to rule 56 of the Federal Rules of Civil Procedure which governs motions for summary judgment. On October 24, 1989, Schmidt filed a reply.

The district judge conducted two hearings. The first, on December 15, 1989, was a status conference. The second, on January 26, 1990, was an evidentiary hearing. R.D. Schmidt was sworn in as a witness and examined by the court and counsel. At the close of the hearing the district judge stated:

It's my opinion that Ellanor A. Fondren by delivering to the defendant the debentures for roughly $250,000 partly performed the basic settlement agreement, that performance was accepted by the defendants.

I believe that the provisions of paragraph 10 referencing the time limit in paragraph one were placed in the agreement for the benefit of the plaintiff Ellanor A. Fondren and she through her attorney has waived strict compliance with those time limitations.

The judge then entered judgment for Fondren.

Schmidt contends that this judgment was entered summarily and thus is subject to de novo review. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). Fondren argues that this judgment included findings of fact which the panel reviews only for clear error. Id.

After the evidentiary hearing the district judge made findings of fact before entering judgment. See Adams v. Johns-Manville Corp., 876 F.2d 702, 707-09 (9th Cir.1989) (parties received sufficient evidentiary hearing); Ahern v. Central Pacific Freight Lines, 846 F.2d 47 (9th Cir.1988) (sustaining district court decision based on findings at evidentiary hearing). We give the same deference to decisions of district judges after such hearings as we do to decisions by district judges after full trial. See e.g., Ahern, 846 F.2d at 48-49. Thus the factual findings made by the district court are reviewable for clear error.

A. Provision for Payment by September 17, 1989.

Where, as in this case, the trial court attempts to ascertain the meaning of a contractual provision by inquiring into the intent of the parties, its conclusions based on extrinsic evidence are factual findings which will not be reversed unless clearly erroneous. Societe Generale de Banque v. Touche Ross & Co. (In re U.S. Financial Securities Litigation), 729 F.2d 628, 632 (9th Cir.1984).

Under Nevada law extrinsic evidence such as that taken by the district court is admissible where the contract is ambiguous. Trans Western Leasing Corp. v. Corrao Construction Co., 98 Nev. 445, 652 P.2d 1181, 1183 (1982). The district court properly considered evidence extrinsic to the settlement agreement to determine what the parties intended paragraphs one and ten to mean. Nevada Refining Co. v. Newton, 88 Nev. 333, 497 P.2d 887 (1972) (extrinsic evidence admissible where contract did not state for whose benefit insurance policy must be maintained); H.K.H. Co. v. American Mortgage Insurance Co., 685 F.2d 315, 317 (1982) (intention of parties controls in construing language of contract and court may rely on "surrounding circumstances" to determine intent).

The district court's finding that the time provisions of paragraph one and ten were put into the agreement for Fondren's benefit was not clearly erroneous.

Schmidt's claim of impossibility is centered on compliance with a September 17, 1989 or January 26, 1990 deadline for payment. He has never claimed that compliance with the settlement agreement as modified by Fondren's waiver of the defect of late payment and extension of the deadline for payment to January 1991 is impossible. See Stoltz v. Grimm, 100 Nev. 529, 689 P.2d 927, 929 (1984) (impossibility claim defeated by waiver of defect in performance). Indeed, Schmidt in his brief to this court states that he has been willing "to take the risk that the conditions [in Panama] will have sufficiently improved that the debenture can be redeemed prior to January, 1991, and reiterate[s] that position at this time." Schmidt's Opening Brief at 6. With this understanding of the settlement agreement and Schmidt's impossibility defense, it is clear that Schmidt presents no valid impossibility defense to the panel.

C. The District Court's Judgment Reflected the Agreement of the Parties.

Schmidt claims that the judgment entered by the district court on January 29, 1990, did not reflect the agreement of the parties. First, he claims that the judgment was deficient in that it did not release him from liability for claims by Fondren in an arbitration proceeding against him as the settlement agreement provided. Fondren conceded in the district court that these claims were extinguished by the district court's judgment. Thus this claim is without merit.

Schmidt also claims that the judgment did not reflect the agreement of the parties because an important goal of the settlement agreement was to avoid having a judgment entered against him. This argument is senseless. Judgment was entered against Schmidt because he failed to voluntarily comply with the settlement agreement after Fondren waived strict compliance with its terms and agreed to delay receipt of payment for up to one year. It was not until after the district court entered judgment on the settlement agreement that Schmidt agreed to comply with its terms. Schmidt's own failure prevented this goal of the settlement agreement from being reached.

D. Issues not Raised in the District Court.

Schmidt presents two arguments to the panel that he did not present to the district court. First, Schmidt argues that he never assented to the settlement agreement. Second, Schmidt claims that he was deprived of property without due process of law because he did not receive adequate notice that the judge would conduct an evidentiary hearing and enter a final decision on January 26, 1991.

Generally, we will not consider arguments not raised in the district court. Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir.1988). We decline to consider these arguments raised for the first time on appeal.

The judgment of the district court is AFFIRMED.