Department of Natural Resources v. O-Tra Industries, Inc. ( 1984 )

Per Curiam.

After careful review of the record, we find no evidence O-Tra Industries was, or could have been, discharged in bankruptcy. The purported discharge order, on its face, does not apply to O-Tra Industries as a corporation, nor does any evidence in the record show that O-Tra Industries as a corporation has ever been discharged in bankruptcy. Moreover, under the federal Bankruptcy Code, a corporation cannot be discharged in bankruptcy. 4 Collier on Bankruptcy (15 Ed. 1979), Section 727.01[2]; In re American Properties, Inc. (Kan. 1983), 10 Bankr. Ct. Dec. 879; In re Novelty & Toy Co. (Ala. 1982), 22 Bankr. 77; In re Kuempel Co. (Ohio 1981), 14 Bankr. 324. Accordingly, as to the first issue of the propriety of summary judgment, an issue of material fact exists. Thus, as to the second assignment of error, the trial court did not commit harmless error in dismissing the action on the erroneous assumption the corporation was no longer in existence. See R.C. 1701.88(B).

We reverse the judgment of the court of appeals and remand the cause to the trial court for further proceedings.

Judgment reversed and cause remanded.

Celebrezze, C.J., Sweeney, Locher, Holmes, C. Brown and J. P. Celebrezze, JJ., concur. W. Brown, J., dissents.