Klager v. ROBERT MEYER COMPANY

Bronson, P.J.

(concurring in part, dissenting in part). I agree with the majority that the individual defendants were not released from personal liability by the assignment of the lease to the corporation, and that the trial court’s finding that the parties intended to include corporate members within those persons to be personally liable under the lease was not clearly erroneous. I respectfully dissent, however, on the issue of mitigation.

As the majority has pointed out, a landlord has a duty to mitigate the damages when a lessee breaches. Tel-Ex Plaza, Inc v Hardees Restaurants, Inc, 76 Mich App 131; 255 NW2d 794 (1977), Froling v Bischoff, 73 Mich App 496; 252 NW2d 832 (1977). The burden is on the lessee to show that the lessor has not used every reasonable effort *326to limit the damages. Froling v Bischoff, supra. In the instant case, plaintiff Wayne Klager was questioned regarding his efforts to mitigate his damages:

"Q [by Terrance Page, attorney for defendants]: Since May of ’72, Mr. Klager, have you been making any efforts to lease the property to others?

"A No.

"Q Have you ever — have you made any efforts to sell this property to others?

"A I have spoken to a number of real estate people but I haven’t — we haven’t discussed price or anything. I was just seeing if there was a general interest.

"Q But you have never listed the property with a real estate agent or lease for sale?

"A No.”

This testimony not only demonstrates that plaintiffs did not make every reasonable effort to minimize their damages; it reveals that they made no such effort at all. I would accordingly hold that defendants met their burden of showing plaintiffs’ failure to mitigate.

While it is true that as a general rule issues not raised in the trial court may not be asserted on appeal, the rule is not inflexible and knows several exceptions. Questions may be raised for the first time on appeal where the issue is one of law, and all the facts necessary for its resolution have been presented. Kahn-Reiss, Inc v Detroit & Northern Savings & Loan Ass’n, 59 Mich App 1, 12; 228 NW2d 816 (1975). Similarly, the rule will not be applied when consideration of an issue first raised on appeal is necessary to a proper determination of the case. Prudential Ins Co of America v Cusick, 369 Mich 269, 283, 290; 120 NW2d 1 (1963). Appellate courts have reserved the authority to consider *327manifest and serious errors even though the issue was not raised below in an effort to prevent injustice, and this applies to both civil and criminal cases. People v Snow, 386 Mich 586, 591; 194 NW2d 314 (1972). See generally, Siirila v Barrios, 398 Mich 576, 610-611; 248 NW2d 171 (1976) (Williams, J., concurring).

I would hold that under these authorities the question of plaintiffs’ failure to mitigate is properly reviewable by this Court. Defendants have been held liable in the amount of $203,446.59 on a lease when plaintiffs have admittedly made no efforts to limit their losses. This Court must reach this issue to make a proper determination of the instant case, and to prevent injustice. I would remand for a hearing on damages, instructing the trial court to deduct the amount that would have been saved if plaintiffs had exercised reasonable efforts to mitigate their damages.