Morton H. Zalutsky, Trustee of Zalutsky, Klarquist & Johnson, P.C., Profit-Sharing Plan and Trust v. Jean Epstein

dissenting:

I respectfully dissent.

Morton Zalutsky appeals a summary judgment dismissing his contract guaranty action against Mrs. Jean Epstein. Zalutsky is trustee of a profit-sharing plan and a resident of Oregon. Mrs. Epstein is a California resident and widow of the late Dr. Leonard Epstein. Dr. Epstein was general partner of Brenden West, a real estate partnership. Brenden West entered into a three-way tax-free real estate exchange *1090 with two other entities that are not parties to this action. As part of the deal, one of the parties took a land sale contract and then sold the contract to Zalutsky for cash. Dr. & Mrs. Epstein executed a guaranty of the land sale contract. The obligor of the contract soon defaulted and Zalutsky turned to the Epsteins for payment. Upon Dr. Epstein’s suggestion, Zalutsky tendered the deed to the obligor to facilitate resale and thereby mitigate damages. The obligor resold the property. Dr. Epstein died shortly thereafter and Zalutsky sued Mrs. Epstein for the deficiency.

The district court accepted Jean Epstein’s two principal arguments. First, the merger doctrine extinguished any obligation she may have had because no evidence indicated…

ORDER

The judgment of the district court is AFFIRMED for the reasons stated by Judge Frye.

820 F.2d 1089 Morton H. ZALUTSKY, Trustee of Zalutsky, Klarquist & Johnson, P.C., Profit-Sharing Plan and Trust, Plaintiff-Appellant, v. Jean EPSTEIN, Defendant-Appellee. No. 86-3819. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 5, 1987. Decided June 29, 1987. Dissenting Opinion Amended July 14, 1987. Gary L. Kahn, Portland, Or., for plaintiff-appellant. Bennett H. Goldstein, Portland, Or., for defendant-appellee. Appeal from the United States District Court for the District of Oregon; Helen J. Frye, District Judge, Presiding. Before ANDERSON, TANG and NOONAN, Circuit Judges. ORDER 1 The judgment of the district court is AFFIRMED for the reasons stated by Judge Frye. TANG, Circuit Judge, dissenting: 2 I respectfully dissent. 3 Morton Zalutsky appeals a summary judgment dismissing his contract guaranty action against Mrs. Jean Epstein. Zalutsky is trustee of a profit-sharing plan and a resident of Oregon. Mrs. Epstein is a California resident and widow of the late Dr. Leonard Epstein. Dr. Epstein was general partner of Brenden West, a real estate partnership. Brenden West entered into a three-way tax-free real estate exchange with two other entities…