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Comerica Bank v. Korogiannis8/30/2005
UNPUBLISHED
Before: Gage, P.J., and Whitbeck, C.J., and Saad, J.
Defendant Ioannis Korogiannis appeals as of right from the trial court's order granting summary disposition to plaintiff, Comerica Bank, under MCR 2.116(C)(10) on its claim against Korogiannis as the guarantor of a promissory note. We affirm.
I. Basic Facts And Procedural History
Korogiannis and two of his cousins started a restaurant called the Parthenon Express, LLC. Korogiannis signed a Variable-Rate Demand Note for $90,000 as the managing member of obligor Parthenon Express. Comerica Bank claims that Korogiannis also signed a Guaranty on February 22, 1999, for "all existing and future indebtedness" of Parthenon Express to Comerica. Parthenon Express defaulted on the loan by failing to make timely payments and failing to provide required financial information. Comerica sued Korogiannis, as guarantor of the loan, to collect $56,392.50 plus interest and late charges for a total of $58,600.93. Korogiannis filed an answer denying the allegations. However, Korogiannis did not attach an affidavit to the answer denying that he signed the Guaranty.
Comerica moved for summary disposition under MCR 2.116(C)(9) and (10), claiming that there was no genuine issue of material fact as to whether Korogiannis signed the guaranty, that Comerica was entitled to judgment as a matter of law, and that Korogiannis did not raise a valid defense. Korogiannis responded and submitted an affidavit denying that he signed the Guaranty. In his brief opposing the summary disposition motion, he requested that the trial court extend the time for filing this affidavit, although he did not file a separate motion to this effect. He did, however, move to amend his answer to include the affidavit. At the motion hearing, Korogiannis' counsel admitted that Korogiannis owned one-third of Parthenon Express and that Korogiannis signed the Variable-Rate Demand Note on behalf of Parthenon Express as a managing member. However, Korogiannis' counsel denied that Korogiannis signed the Guaranty and asserted that Parthenon Express bought Korogiannis' interest shortly after it began business.
The trial judge found that Korogiannis was an owner of Parthenon Express when the Variable-Rate Demand Note was executed. The trial court also found that Korogiannis signed the Guaranty based on MCR 2.112(E)(1), which deems a signature admitted if the party did not file an affidavit with the answer denying the signature's validity. The trial court granted plaintiff's motion under MCR 2.116(C)(10) and entered judgment for Comerica. Defense counsel objected because he had filed a motion to amend the answer; however, the trial court dismissed Korogiannis' motion to amend his answer as moot because it had just closed the case.
II. Summary Disposition
A. Standards Of Review
Korogiannis argues that the court erroneously found that he signed the Guaranty, erroneously granted summary disposition given that Korogiannis created a factual issue by submitting an affidavit denying that he signed the Guaranty, and erroneously dismissed his motion to amend his answer to include the affidavit. We review de novo the trial court's ruling on a motion for summary disposition. We review the trial court's decision respecting whether good cause existed to extend the time for filing the affidavit for an abuse of discretion. We review the trial court's decision on a motion to amend for an abuse of discretion.
B. "Good Cause" Under MCR 2.112(E)(1)
The rule of pleading that governs actions on written instruments is MCR 2.112(E)(1). It provides:
In an action on a written in
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