878 F2d 1439 Westgarth v. French

878 F.2d 1439

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Anne WESTGARTH, etc., Plaintiff/Appellant,
v.
John FRENCH, etc., et al., Defendants/Appellees.

No. 88-15023.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1989.
Decided June 29, 1989.

Before FARRIS, DAVID R. THOMPSON and TROTT, Circuit Judges.


Advertisement
view counter
1

MEMORANDUM*

2

Plaintiff-appellant Westgarth appeals the grant of summary judgment on the counts decided in favor of the defendant. We affirm the decision of the district court.

3

* Since Westgarth is appealing from a grant of summary judgment we review the evidence de novo in a light most favorable to her to determine if there are any genuine issues of material fact and whether the district court applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We find that there were no genuine issues of material fact and that summary judgment was appropriate.1 The district court was correct in concluding that estoppel was applicable to bar appellant's collection of the money due under the contract between 1982 and June of 1986. The district court was also correct in its conclusion that the sale was structured as it was for tax purposes only and was intended to provide for a complete transfer of ownership from Westgarth to French. The record shows conclusively that Mrs. Westgarth understood in 1981 that she was accepting $30,000 each year for the rest of her life in exchange for her conveyance of the entire business. The record also shows that she realized the price was on the low side of fair market value but that this was outweighed by her wish to see the business go to her son John at a price he could afford. This view is buttressed by her willingness shortly thereafter to accept reduced monthly payments of only $2,000 a month and the fact that the record reveals no indication of fraud, mistake, or duress.

4

It follows from the foregoing analysis that because Mrs. Westgarth no longer owned any stock in the business as of 1981, she could not maintain a shareholder derivative action on the corporations' behalf. The parties shall bear their own costs of appeal.

5

The decision of the district court is AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

We expect vigorous advocacy from counsel. We do not expect, nor are we aided by, misleading allegations that the trial judge "without any prior notifications to the parties or their counsel ... decided to dispose of the entire lawsuit by granting summary judgment...." This ignores a stipulation by counsel for the appellant that the trial judge could proceed as if all parties had moved for summary judgment