Prineville Sawmill Co. v. Longview Fibre Co.

dissenting.

For the reasons ably set forth by the district judge, I would affirm.

MEMORANDUM *

Prineville Sawmill Co. appeals the district court’s grant of summary judgment for Longview Fibre Co. We have jurisdiction pursuant to 28 U.S.C. § 1291 . As the parties are familiar with the facts, we do not recount them here except as necessary. For the reasons set forth below, we reverse and remand.

Viewing the 1999 settlement agreement in context, we conclude that Prineville had a reasonable expectation, based on the past performance of the parties, that *134 Longview would not strictly enforce the $ % bark content provision. In entering the 1999 settlement agreement, Prineville reasonably expected that Longview would not depart from its past practices and would accept chips similar to those accepted in the past. Fact questions sufficient to preclude summary judgment exist as to whether Longview was equitably estopped from adopting a new policy of strict enforcement of the /&% bark content provision, and as to Prineville’s assertion that Longview’s actions were part of a systematic and deliberate attempt to prevent Prineville from fully performing under the 1999 agreement — especially in light of the fact that the agreement was entered into as a result of…