Opinion
Docket No. 18093.
Decided June 27, 1974. Leave to appeal denied. 392 Mich. 798.
Appeal from Washtenaw, Patrick J. Conlin, J. Submitted Division 2 May 9, 1974, at Lansing. (Docket No. 18093.) Decided June 27, 1974. Leave to appeal denied, 392 Mich. 798.
Complaint by Trans Plastic, Incorporated, an Ohio corporation, against Conser Construction Company, a Michigan corporation, Hugh P. Conser, Gerard Matuszak, and Maureen Conser, to enforce an Ohio judgment against Conser Construction Company, and to obtain personal judgments against the other defendants. The Ohio judgment against the corporate defendant was upheld, and accelerated judgment granted for the individual defendants. Plaintiff appeals. Reversed and remanded.
Hooper, Hathaway, Fichera, Price Davis, for plaintiff.
Gerard J. Matuszak, in propria persona. Bilakos Hanlon, for defendants Conser Construction Company and Hugh P. Conser.
Plaintiff, an Ohio corporation, brought suit in Michigan to enforce an Ohio judgment against the corporate defendant, Conser Construction Company. Plaintiff also sought to obtain personal judgments against the individual defendants as officers of the debtor corporation. The obligation of the officers is asserted upon the authority of MCLA 450.87; MSA 21.87 holding officers personally liable for debts contracted during a period of default in the filing of an annual corporate report. The trial judge granted an accelerated judgment in favor of the individual defendants, granted full faith and credit to the Ohio judgment against the corporation, and dismissed plaintiff-appellant's complaint.
The parties apparently agree that defendant Maureen B. Conser, a director but not an officer of the corporation, is not liable. See: Adams v E M Burke Homes, Inc, 14 Mich. App. 578, 583-584; 166 N.W.2d 34 (1968).
This section is now found in two sections of the Business Corporation Act. MCLA 450.1921; MSA 21.200(921) and MCLA 450.1923; MSA 21.200(923). The provision making officers liable for debts was not incorporated in the new Business Corporation Act.
We direct our initial review to the defendants' claim that the plaintiff's action is barred by the two-year limitation period found in MCLA 450.90; MSA 21.90. This argument is without merit. The two-year limit begins after the period of grace for filing and this action was timely commenced within this two-year period. See: Eberts Cadillac Co v Miller, 372 Mich. 172; 125 N.W.2d 306 (1963).
This section is now found in MCLA 450.1923; MSA 21.200(923).
The remaining question is the liability of the corporate officers. Both parties have argued the merits of when and if a contract was made during the period of default. The parties also disagree on when the period of default was terminated.
This decision is here on appeal of an accelerated judgment, GCR 1963, 116. Section 3 of GCR 116 provides:
".3 Affidavit Hearing; Immediate Trial. Any defense or objection raised under this rule, whether in a responsive pleading or by motion, may be noticed for hearing by either party as if raised by motion. Affidavits or other evidence may be submitted by either party to support or oppose the grounds asserted in the pleading or motion, and in every case where the grounds asserted do not appear on the face of the pleading attacked, the demand shall be supported by affidavits or other evidence filed with the pleading or motion. As to defenses and objections based upon (1), (2), (3), or (4) in sub-rule 116.1, the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment upon the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits. As to defenses and objections based upon sub-rule 116.1(5), the court may order immediate trial of any disputed questions of fact, and judgment may be rendered forthwith if the proof shows that the moving party is entitled to judgment on the facts as determined; or the court may postpone the hearing on the matter until the trial on the merits, and shall postpone the hearing if a jury trial has been demanded pursuant to right on or before the day of the hearing."
The requirements of this section were not met. There was no trial, only a brief five-page motion hearing and subsequent opinion by the trial judge. A trial is required. In Lake States Engineering Corp v Lawrence Seaway Corp, 15 Mich. App. 637, 642-643; 167 N.W.2d 320 (1969), Judge (now Justice) LEVIN stated:
"The question of when and where the parties became contractually bound depends on their intention as manifested by their verbal statements and conduct in the light of all the circumstances. * * * Furthermore, the question could not be decided without a trial hearing * * *." [Footnotes omitted.] Lake States, supra, at 642-643.
See, also: MCLA 440.1201(3); MSA 19.1201(3) (agreement), MCLA 440.1201(11); MSA 19.1201(11) (contract), MCLA 440.1103; MSA 19.1103 (supplementary general principles of law applicable); MCLA 440.2102; MSA 19.2102 (scope), MCLA 440.2106(1); MSA 19.2106(1) (contract-agreement), MCLA 440.2204; MSA 19.2204 (formation). Because the question is not before us we express no opinion on the applicability of the Uniform Commercial Code vis-a-vis the common law of contracts.
Defendants also attack the Ohio judgment. This question was raised for the first time on appeal. We note that in the trial court the judgment was assumed to be valid. We will not consider such unpreserved issues, especially where the resolution hinges on factual determinations from a record wherein no evidence on the issue has been presented.
Accordingly, the judgment of the trial court is vacated, the plaintiff-appellant's complaint is reinstated, and the matter is remanded for trial on the merits. To avoid any possible prejudice to the parties due to the premature finding of the trial court another circuit judge shall be appointed for the trial of this cause.
Reversed and remanded. Costs to plaintiff-appellant.
BRONSON, J., did not participate.