BARRICK ENTERPRISES INC V 2257 WATERMAN OPERATING CO LLC
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STATE OF MICHIGAN
COURT OF APPEALS
BARRICK ENTERPRISES, INC.,
UNPUBLISHED
March 4, 2008
Plaintiff-Appellee,
v
2257 WATERMAN OPERATING COMPANY,
L.L.C., and MARSHALL STILLMAN, and
ROCHELLE STILLMAN,
No. 275038
Oakland Circuit Court
LC No. 05-069822 CZ
Defendants-Appellants.
Before: Whitbeck, C.J., and White and Zahra, JJ.
WHITE, J. (concurring in part and dissenting in part).
I agree that the circuit court correctly granted summary disposition on the issue of
defendants’ liability for gas delivered and not paid for, that the court’s analysis of the liquidated
damages issue was also correct, and that the court properly determined that the deed was given
as security for the debt. I conclude, however, that the court erred in entering the final judgment
because there were genuine issues of material fact regarding the amount of damages.
In addition to the checks identified by the majority, I would also remand with respect to
payments Marina Barisha claimed to have made. While the circuit court may have found the
proofs unsatisfactory, Barisha’s testimony created a genuine issue of material fact nevertheless.
Regarding the property, I would remand for a determination regarding when plaintiff
took control of the collateral, and whether plaintiff properly maintained it after that point or
permitted waste. If plaintiff dealt with the property in a commercially reasonable manner and the
decrease in value was due solely to market forces and not waste or undue delay, I would value
the property at the time of sale. If plaintiff did not act in a commercially reasonable manner, I
would value the property at the time plaintiff took control of it. I would grant the parties a
hearing on this matter.
Lastly, I would order that the court allow defendants a credit for the volume of gas
purchased by Zaban since the final judgment was entered.
/s/ Helene N. White
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