Glaser's Elevator & Lumber Co. v. Perry

¶1(dissenting). I do not agree with Judge Gillis that defendant failed to state a valid defense to the claim asserted against him. Defendant’s affirmative defense states:

"That the defendant denies any liability in this case for the reason that the defendant was at all pertinent times acting as agent for Ken Perry Builders, Inc., a duly licensed Michigan corporation, and not in an individual capacity.”

¶2This affirmative defense, tested under GCR 1963, 117.2(2), would, if proven, constitute a valid defense to the claim.

¶3It should be further noted that plaintiffs motion for summary judgment was not brought under GCR 1963, 117.2(2) but under GCR 1963, 117.2(3). The motion was accompanied by an "Affidavit of Facts” by Edward H. Powers, attorney for plaintiff. Attached to this affidavit were various exhibits consisting of:

¶41) A certified copy of an assumed name certificate for use of the assumed name Ken Perry Builder, filed by Ken Perry with the county clerk of Genesee County on December 9, 1964, which certificate expired on December 9, 1969;

¶52) A certificate of State Treasurer Allison Green stating that Ken Perry Builder, Inc., a Michigan *608corporation, was incorporated on September 27, 1965, and that the fee to apply to the 1967 corporation report was received December 12, 1967, but the report was not submitted and the charter became void May 15, 1969 under the provisions of section 91, 1931 PA 327, as amended. Reports for 1967-1970 were accepted for filing June 3, 1970, and the charter of the corporation was revived on that date;

¶63) A certificate of Charles E. Harmon, Director of the Department of Licensing and Regulation for the State of Michigan, that residential builders license #05763 was issued January 9, 1967 to Cyril A. Heath;1

¶74) A certificate of Charles E. Harmon, Director of the Department of Licensing and Regulation for the State of Michigan, that residential builders license #07263 was first issued on February 17, 1967, for application validated September 2, 1966, to Ken Perry Builder, Inc., with qualifying officer being Kenneth J. Perry, as a.corporate residential builder, for a term that expired March 31, 1969.

¶8The affidavit also referred to defendant’s deposition, taken December 2, 1970, which deposition was never completed and terminated with an adjournment. Further reference was made to defendant’s answers to certain interrogatories propounded by plaintiff.

¶9Relative to the issue of corporate versus individual activity, defendant in his deposition states that upon incorporation of Ken Perry Builder, Inc., a corporate bank account was opened and that "every bit of stationery and checks, letterheads, all of our advertising in front of our houses, all of our signs, were all read with the incorporation on it”.

¶10*609Plaintiffs interrogatory No. 8 reads:

"Did you ever serve written notice upon your creditors generally, and the plaintiff specifically, of the incorporation of Ken Perry Builders, Inc.? If your answer to this question is yes, please indicate details and attach a copy of said written notice to your answer.”

¶11Defendant’s answer to interrogatory No. 8 is as follows:

"All payments were paid by checks from Ken Perry Bldr., Inc. All labor and supplies ordered by Ken Perry Bldr., Inc.”

¶12Without attempting to reproduce here all of the material which was before the trial judge on the motion for summary judgment (there are a number of statements by defendant in his deposition with regard to corporate activity) it seems abundantly clear to me that the issue as to whether defendant was acting in an individual capacity or as an agent for the corporation is contested and is a genuine issue as to a material fact which should be resolved upon trial and not by a motion for summary judgment.

¶13As to the issue of defendant’s personal liability to plaintiff, plaintiff’s complaint states:

"That during the period of time from March 14, 1967, to September 28, 1967, the defendant ordered certain materials from your plaintiff, in connection with the construction at the aforesaid locations, in the amount of Eight Thousand Eight Hundred Seven Dollars and Three ($8,807.03) Cents.”

¶14The annual report of Ken Perry Builder, Inc., for the year 1967 was required to be filed with the Michigan Corporation and Securities Commission on or before May 15, 1967. MCLA 450.82; MSA *61021.82. Prior to that date, the corporation was in good standing and its officers were not liable for corporate debts as provided in MCLA 450.87; MSA 21.87. Consequently, defendant would not be personally liable to plaintiff for materials purchased from plaintiff by the corporation during the period from March 14, 1967 to May 15, 1967. Since the record in this case contains no bill of particulars listing specific dates when materials were ordered and delivered, it is possible that some of plaintiffs claim accrued during a period of fully legal corporate activity. Therefore, whether the corporation in fact ordered materials during this period and, if so, the value of said materials are questions of fact which must be resolved during trial.

¶15Defendant’s possible personal liability for corporate debts under MCLA 450.87; MSA 21.87 is limited by the relevant statute of limitations, MCLA 450.90; MSA 21.90, to a period of two years. Since plaintiffs complaint was filed on March 30, 1970, it is clear that the two-year statutory period had elapsed before suit was commenced.2 Consequently, defendant would have a valid defense to any claim that he is personally liable for debts incurred by the corporation during its period of default.

¶16This is another case in which there are genuine issues as to material facts which preclude the granting of summary judgment under GCR 1963, 117.2(3). I would therefore reverse the trial court and remand this case for further proceedings.