KURT WINTERS V BEAR CREEK INVESTMENTS INC
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STATE OF MICHIGAN
COURT OF APPEALS
KURT WINTERS,
UNPUBLISHED
March 12, 2002
Plaintiff-Appellant,
v
BEAR CREEK INVESTMENTS, INC., BRENT J.
SNYDER, and THOMAS JOHNS,
No. 226494
Washtenaw Circuit Court
LC No. 99-010400-CK
Defendants-Appellees,
and
JACK KORTE,
Defendant.
Before: Fitzgerald, P.J., and Hoekstra and Markey, JJ.
MARKEY, J. (concurring in part and dissenting in part).
I concur with the majority opinion except as follows. In the interest of justice, I note that
another provision of the BCA, MCL 450.1345, appears to be relevant, although not cited by any
of the parties at the trial level or on appeal. MCL 450.1345 provides, in part:
(1) A board may authorize and the corporation may make distributions to its
shareholders subject to restriction by the articles of incorporation and the
limitation in subsection (3).
***
(3) A distribution shall not be made if, after giving it effect, the corporation would
not be able to pay its debts as the debts become due in the normal course of
business.
This statute appears to prohibit the action taken by defendants in the present case and
would support voiding the transfer of the $90,000 to the individual defendants if the original
payments from those defendants were not considered loans. Consequently, I conclude that MCL
-1-
450.1345 supports entry of a judgment voiding the transfer without need to continue the trial
because there appears to be no issue of fact that defendant corporation was unable to pay plaintiff
for the excavation services after the $90,000 was transferred to the individual defendants.
/s/ Jane E. Markey
-2-
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