Bluestone v. General Electric Credit Corp. of Tennessee

121 Mich. App. 659
CourtMichigan Court of Appeals
DecidedDecember 6, 1982
DocketDocket No. 56487
StatusPublished
Cited by4 cases

This text of 121 Mich. App. 659 (Bluestone v. General Electric Credit Corp. of Tennessee) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bluestone v. General Electric Credit Corp. of Tennessee, 121 Mich. App. 659 (Mich. Ct. App. 1982).

Opinion

V. R. Payant, J.

Appellant estate appeals as of right from the probate court’s order directing it to pay six claims arising from the decedent’s personal guarantees of the obligations of his recently bank[662]*662rupt Southfield restaurant, Bagel Nosh of Michigan.

During the spring of 1977, decedent and other officers of Bagel Nosh arranged various loans and equipment leases for the purpose of opening the local restaurant. In return, the officers, including the decedent, agreed personally to guarantee certain of Bagel Nosh’s obligations. Soon after the restaurant opened in July, 1977, it had become delinquent in its obligations. All of the officers who personally guaranteed Bagel Nosh’s obligations, including decedent, resigned their positions. The operations of the struggling business were then left to Mark Lopatin, a son of two of the guarantors, Lawrence and Florence Lopatin. Mark Lopatin later served as "special counsel” for the appellant in the probate proceedings.

Appellant alleges that during 1978 Harvey Aidem, acting on behalf of Bagel Nosh’s various creditors and lessors, arranged with Mark Lopatin to restructure the transactions to reduce or cure the restaurant’s delinquencies. Oral agreements were allegedly reached between Aidem and Mark Lopatin. Several of these refinancing agreements were allegedly reduced to writing. Bagel Nosh’s creditors and lessors, however, deny having agreed to any refinancing arrangement. Although the parties dispute the extent to which there may have been refinancing agreements, the parties agree that none of the guarantors were notified of any refinancing arrangements. Accordingly, none of the guarantors either consented or objected to any of the terms of any such agreement. Bagel Nosh continued to fall behind in its obligations and ceased making payments on those obligations in early 1979. It filed for voluntary bankruptcy in late 1979 and was adjudged bankrupt by a federal court in February, 1980.

[663]*663Decedent died in 1978, several months after the alleged refinancing agreements had been entered into. Proceedings in his estate commenced with the probate of his will during October, 1978. Three of the six claimants herein, Canfield Finance and Discount Company, Waterford Medical Associates, P.C., and General Electric Credit Corporation (GECC), filed timely contingent claims before the deadline for filing nontardy claims, January 9, 1979. The remaining claimants involved in this appeal, Jack Laurie, Sanford and Beverly Wiatrak, and J. Max Robertson, subsequently requested permission to file tardy claims. Two of the original nontardy claimants, Canfield and GECC, then filed petitions to make their contingent claims absolute. In April, 1979, the court appointed a referee to hear all contested claims. A hearing was held on February 13, 1980, as to several of the claims, but the referee did not issue any opinion or recommendation.

On May 13, 1980, the probate court heard argument pursuant to GECC’s petition to make the balance of its original claim absolute. GECC had loaned Bagel Nosh $90,000 to purchase certain equipment and was granted a purchase money security interest in the equipment. When Bagel Nosh defaulted on the loan, GECC served written notice of its intention to sell the collateral at a private sale on all the guarantors but one, Lawrence Lopatin. The notice to Mr. Lopatin was returned twice by the post office to GECC as "unclaimed”. Nevertheless, the collateral was sold for $25,000, a price in excess of its appraised value. At the hearing, Mark Lopatin, counsel for the estate, argued that GECC had not met its statutory obligation under the Uniform Commercial Code to notify all guarantors of the sale, [664]*664thereby barring GECC from collecting the $40,716.79 deficiency on Bagel Nosh’s account. A second hearing was held on July 9, 1980, concerning GECC’s petition. Following this hearing, the court took the matter under advisement.

The estate then filed a motion on June 11, 1980, requesting permission to file objections to the presentment of the three tardy claims. The probate court granted the motion and at a pretrial hearing directed the parties to submit briefs as to ten "Issues of Litigation”1 agreed upon by the parties.

On December 24, 1980, without having held any further hearings, the probate court issued its opinion and order, granting all six of the claims in full. In its opinion, the court found that the language of the decedent’s guarantees was unambiguous and that the estate was not allowed to introduce parol evidence of an unfulfilled condition precedent to the enforceability of those guarantees. The court further found that any modifications granted by Robertson, Laurie, and the Wiatraks did not re[665]*665lease the guarantors from liability since the guarantees in question expressly permitted modifications without notice to the guarantors. The court specifically found with respect to GECC’s claim that the guarantors were "debtors”, entitled under the Uniform Commercial Code to receive notice of an intention to sell collateral. However, the court held that GECC had taken reasonable steps to notify all guarantors of its intention to sell the collateral and that GECC had therefore complied with the statute.

On appeal, appellant raises several procedural and substantive objections to the probate court’s opinion and order. Appellant first claims that the probate court erred in not admitting parol evidence as to the existence of an unfulfilled condition precedent to the enforceability of decedent’s guarantees. According to appellant, decedent’s guarantee was conditional upon the signing of all of Bagel Nosh’s stockholders and their spouses. Because the guarantees in question lacked the signatures of two stockholders and their spouses, appellant contends, they were unenforceable.

Where a contract is clear and unambiguous and the parties intend the writing to be a complete expression of their agreement as to the terms covered therein, the parol evidence rule bars admission of prior or. contemporaneous agreements which contradict or vary the written contract, Goodwin, Inc v Orson E Coe Pontiac, Inc, 392 Mich 195, 204; 220 NW2d 664 (1974).

Appellant urges that none of the guarantee documents were intended by the parties to serve as the full integration of their agreement. Appellant relies on NAG Enterprises, Inc v All State Industries, Inc, 407 Mich 407; 285 NW2d 770 (1979), and Michigan Bank, National Ass’n v Wil[666]*666liam J Kahlich, Inc, 23 Mich App 483; 179 NW2d 29 (1970), in support of its position. In both those cases, the granting of summary judgment was found to be improper where the party seeking to introduce parol evidence filed a counterclaim, alleging the existence of certain facts, which, if true, would have supported an inference that the guarantee in question did not constitute the complete agreement of the parties.

The instant case is distinguishable in that appellant has made no showing of any extrinsic circumstances which would suggest that the guarantee documents were anything other than the complete integration of the parties’ respective agreements. Moreover, the probate court did not summarily dismiss or refuse to hear appellant’s arguments on this issue. The court gave appellant ample opportunity to subpoena witnesses to testify or otherwise submit evidence to establish a condition precedent to the guarantees.

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Cite This Page — Counsel Stack

Bluebook (online)
121 Mich. App. 659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bluestone-v-general-electric-credit-corp-of-tennessee-michctapp-1982.