*1 App PARTTITON, v DEPARTMENTOF & INC CENTRALCEILING COMMERCE 5, 2001, Decided Jan- November at Detroit. Docket No. 225378. Submitted appeal sought. uary 29, 2002, at 9:15 A.M. Leave Wayne Inc., brought Partition, Ceiling an action in the Cir- & Central Homes, Department Commerce, against Primeau cuit Court Depart- Suppliers, Inc., others, seeking Inc., and from the Kitchen recovery from the Homeowner Construction ment of Commerce a Recovery Act, the Construction Lien MCL Lien Fund under by Ceiling seq., or materials furnished Central 570.1101 et for labor projects improvement Pri- in home in which as a subcontractor recovery general was was the contractor. The samе meau Homes by Department Suppliers sought of Commerce Kitchen from the department, by Cappy Heating against and a cross-claim Inc., plain- Conditioning, was allowed to intervene as a Air which Ceiling, Sup- which Central Kitchen tiff. The construction liens on pliers, Cappy had all with and based their claims been filed by Wayne County Register accepted of Deeds office within ninety days or of when the subcontractors last furnished labor improvement projects. The construction materials for the home however, liens, not recorded of deeds office were days ninety labor within of when the subcontractors last furnished parties submitted the subcontractors’ claims for or materials. The stipulated department moved decision the court on facts. summary disposition claims, arguing of the subcontractors’ that, Act, Lien a construction lien ceases to under the Construction ninety days within the hen exist when it is not recorded after court, Ter- claimant last furnishes labor or materials. The Paul S. ultimately anes, J., department’s motion and entered denied the against depart- judgments in favor of the subcontractors appealed. depаrtment ment. The Appeals The Court of held: Act, 111(1), MCL The Construction Lien in subsection subcontractor, 570.1111(1), provides right contractor, that the of a
laborer, supplier lien created the act shall to a construction unless, after claimant’s cease to exist within the lien pursuant furnishing improvement, last of labor or material for the v Commerce contract, to the hen claimant’s a claim of hen is recorded in the county prop- office of the of deeds for each where the real erty improvement However, to which the was made is located. 302(1), 570.1302(1),рro- Construction Lien in subsection MCL provisions vides that substantial with the of the act validity provided shah be sufficient for the of the construction hens *2 jurisdiction give for in the act and to to the court enforce them. compliance provision act, Pursuant to the substantial of the properly filing register subcontractors’ actions of with the hens register acceptance of deeds office and the of deeds office’s of the filing compliance require- hens for constitute substantial with the ninety days. ment of the act that a hen be recorded within Accord- ingly, rights subject thе subcontractors’ were not to the automatic extinguishment provision 111(1) of subsection and did not cease to exist. Affirmed. J., dissenting, compliance pro- stated that the substantial apply statutorily
vision of the Construction Lien Act does not to the ninety-day recording mandated deadline and that the term “recorded,” act, entry as used in the means in the of deeds’ book of levies. Because the hens at issue in this case were not ninety-day deadline, they recorded within the ceased to exist and provide recovery by therefore no basis for the subcontractors from Department of Commerce under the Homeowner Construction Recovery judgment Lien Fund. The of the trial court should be entry reversed and the matter should be remanded for the of an summary disposition department. order of in favor of the Recording — — — Compliance. Liens Construction Liens Substantial acceptance of a construction hen and its ninety days deeds office within after the lienholder last furnishes improvement property labor or materials for the of real constitute requirement with of the Construction Lien Act that such a hen be recorded within after labor or materials (MCL 570.1111[1],570.1302[1]). were last furnished Edwards & Martinuzzi, Randy PLC G. (by Mar- for tinuzzi), Ceiling Central & Inc. Partition, M. Granholm, Attorney General, Thomas Jennifer Casey, L. General, Solicitor and Michael A. Lockman Kelley McLean, and T. Attorneys Assistant General, Department for the of Commerce. 249
Opinion of the Court Myers Sgroi & Muller, Muller, Richmond, Harms, Roy Suppliers, (by Sgroi), C. for Kitchen Inc. Neff, P.J.,
Before: and Wilder JJ. Cooper, Michigan Department Neff, P.J. Defendant of Com- appeals right merce as of the trial court’s denial of summary disposition entry defendant’s motion plaintiff judgment $21,280 in favor of Central (Central), Partition, $4,054 & Inc. in favor of Suppliers, defendant Kitchen Inc. $6,915 (ksi), plaintiff Cappy intervening Heating favor of and Air respect Conditioning, (Cappy) Inc. with to their against claims the Homeowner Construction Lien Recovery Fund. We affirm.
i stipulated The facts in this case were before the general trial court. Defendant contractor Primeau *3 pay Homes, Inc., failed to subcontractors,1 Central, its Cappy, performed ksi, for materials and work on several homes under Primeau’s contracts with the improvements. owners for home The subcontractors sought recovery from the Homeowner Construction Recovery Lien Act, Fund under the Construction Lien seq. 570.1111(1), MCL 570.1101 et Pursuant to MCL Cappy presented Central, KSI, each liens to the Wayne County Register recording of Deeds for within furnishing of the last of labor or materials improvements. Wayne County for the However, failed formally by assigning “record” the liens them a 1 reference, Central, ksi, Cappy For ease of we refer to as “subcon tractors,” disregarding any suppli technical distinction between material ers and service contractors. 441
Opinion Court page later, liber and number until sometime after the passed. ninety-day periоd had summary disposition sought of the sub- Defendant 2.116(C)(10) lien fund claims under MCR contractors’ ground the liens were recorded within on the not ninety-day period required by as the Construction 570.1111(1). The trial court denied Lien MCL granted judgment and instead defendant’s motion concluding subcontractors, favor of the that there compliance require- was with the act’s substantial ments and the subcontractors were entitled to recov- ery from lien fund. The court reasoned that the presented subcontractors their liens for required ninety-day period within the and obtained any delay by Wayne stamps filings, date оn the County entering filings staff in in the record beyond control, and, books was the subcontractors’ thus, there was with the requirement.
n question This Court reviews de novo as a lawof grant summary disposi- trial court’s of a motion for tion. Ardt v Titan Ins 233 Co, 685, 688; Mich (1999). summary disposition NW2d A motion for 2.116(C)(10) under MCR tests the factual basis under- lying Everett, a claim. Radtke v 368, 374; (1993). NW2d 155 We consider all relevant documen- tary light in a evidence most favorable to the non- party. Id.) supra. Summary moving disposition Ardt, 2.116(C)(10) proper under MCR is when there is no *4 genuine moving party material issue of fact and the is judgment entitled to as a matter Id. of law. 249
Opinion of the Court m To recover under Construction Lien a claimant must days record the lien within ninety of the last date of furnishing material or labor:
Notwithstanding 570.1109], right section 109 [MCL contractor, subcontractor, a laborer, supplier to a con- struction unless, lien created this act shall cease to exist days within 90 furnishing after the lien claimant’s last improvement, pursuant labor or material for the to the lien contract, claimant’s a claim of lien is recorded in the office county of the of deeds for each where the real property improvement to which the was made is located. A only claim of lien shall property be valid as to the real described in county the claim of lien and located within the where the claim of lien has been recorded. [MCL 570.1111(1).] Defendant contends the lien claims filed Central, KSI, and Cappy were timely not because even they though were filed the subcontractors accepted by Wayne County Register of Deeds office within ninety-day period, deeds office did formally not record the liens until after the period had passed. disagree. We The Construction Lien Act a contains substantial compliance provision, MCL 570.1302(1): This act is statute, declared to be remedial and shall be
liberally construed results, intents, to secure the beneficial purposes this act. Substantial with the provisions of validity this act shall be sufficient for the provided act, construction liens give for in this and to jurisdiction to the court to enforce them. The substantial compliance provision does not nec- essarily apply requirements to all of the act. Northern *5 443 Opinion of the Court Pipe, Inc,
Concrete Inc v 461 Sinacola Cos—Midwest 321; scope 257 of 316, (1999). NW2d the provision must be analy- determined case case factors, sis of relevant such as logically purpose statute; potential prejudice the of overall the for clarity statutory apparent provi- unfairness when the of a uncertainly replaced compli- sion is of a “substantial clause; litigants public; ance” the interests of future and the reasonably the extent to which a court can determine what compliance” particular constitutes “substantial within a and, specific context; course, language of the “sub- compliance” provisions stantial and other of the statute. [Id. at 321-322.]
In applying thesе the Court in factors, Northern Con- Pipe provisions crete observed that outlining requirements for with public certain information or those providing types officials notice are the provisions to provi- which a substantial compliance may suitably sion Id. We applied. be at 323. agree, conclude, so on the before us. facts
Pursuant to the Lien Construction Act’s substantial compliance provision, MCL the subcon- 570.1302(1), tractors’ actions of properly filing the lien claims with of deeds, acceptance by register register office, of deeds constitutes substantiаl with act’s requirement that a claim of lien be days. ninety recorded within the subcon- Accordingly, rights subject tractors’ were not to the automatic not extinguishment provision § and did cease to exist. timely ah issue,
Of the six hens at were filed and a accepted. subject Central’s hens were to last date of 1997, October and were filed with the furnishing 249 Mich Opinion of the Court register 17, 1997.Ksi’slien was of deeds on December subject furnishing 11, 1997, of June last date of register August 27, of deeds on and was filed with the Cappy’s subject liens were to a last date of fur- 1997. September nishing with 18, 1997, and were filed 5, 1997. of deeds on Decеmber Unfortunately, formally the claims of lien were not recorded within the of deeds office for more thirty days they accepted. than after were filed and accepted on Central’s claims of lien were filed and formally *6 17, 1997, December but not recorded until February 2, 1998. Ksi’s claim of lien was filed and accepted formally August 1997, 27, on but not September Cappy’s recorded until 1997. claims of accepted 5, 1997, hen were filed and on December formally January 23, but not recorded until 1998. delays Attributing within the deeds suggested subcontractors, office to the as defen- dant, would lead to absurd and unfair results. No lien days claimant would ever know the number of statutorily prescribed would be “deducted” from the ninety-day period lag because the time between the filing acceptance recording and and the formal would vary subject might case case. One lien claimant be thirty-day period, subject might to a while another be sixty-day period, yet eighty- to a another to an ninety-day period, merely in because variances for- recording registers mal times within the of deeds wholly offices. We cannot result, sanction this which ninety-day negates Legislaturе’s concept of a period expressed great poten- in the statute and has prejudice tial for or unfairness. Northern Concrete Pipe, supra at 321-322. Opinion of the Court
We recognize that the Construction spec- Lien Act’s ninety-day period ified in subject is not to a § substantial interpretation. Id. at 323. The ninety-day deadline means precisely ninety days. Id. However, just as the Legislature could not have intended that be stretched ninety-one days or one hundred or more, id., neither could the have Legislature arbitrary intended an reduction of ninety-day fifty-six deadline to forty-three days or less, to allow for the internal office time involved in each recording particular claim of lien. Such idio- syncratic calculations would wreak chaos on the con- system. struction lien
We hold that within filing ninety-day statutory period, acceptance of a lien claim the register of deeds, substantially complies with the require- act’s ment lien claim. Our leaves holding no uncertainty that acceptance must occur within the period; it reasonably can be requirement determined whether the has been met in particular context. Id. at 322, see also id. at 318 lien (a may be improperly filed and thus not accepted, which case requirement may not be *7 met).
The dissent’s analysis would be well taken if the standard under the Construction Lien Act was one of strict compliance, but it is not. The Legislature expressly adopted a standard of substantial compli- ance to secure the beneficial results of the act: compliance . . . shall be for sufficient “[substantial validity the of the construction liens . . . .” MCL 570.1302(1). 249 Mich 438
Opinion of the Court compliance premise of the dissent reads The strict Pipe, supra, too of Northеrn Concrete holding the was limited to the broadly. question in that case and whether a lien that was not ninety-day deadline within the properly the contractor filed timely. be Id. at 321. period could nevertheless Court, question the was “whether As framed compliance’ provision applica- here is the ‘substantial ninety-day filing requirement.” ble to the Id. at 321. precise is not well deadline suited Observing “[a] analysis compli- to an of what constitutes ‘substantial ” expand the Court declined to to ance,’ deadline supply the contractor’s failure to accommodate dеscription for the hen until complete legal days some 120 after the last date of Id. at furnishing. view 318, 323. We cannot the circumstances as of present holding case within the Northern Con- Pipe. The Construction lien Act’s crete substantial compliance Legislature’s express standard and the liberally directive that the act “shall be construed results, intents, purposes secure the beneficial this act” it from other statutes and sub- distinguishes interpretations by sequent the courts relied on dissent. MCL 570.1302(1).
Application
compliance provision
of the substantial
comports
in this circumstance
with the Construction
purpose
Lien Act’s
of hen
“protecting
rights
payment
claimants to
for
and materials.”2 Old
wages
v
Co,
Kent Bank
Kalamazoo Whitaker Constr
provision
Further, application
of the substantial
does not
against
purpose
protecting
paying
work
homeowners
from
twice
services,
Co,
Kent Bank
v Whitaker
Old.
Kalamazoo
Constr
App 436, 439;
(1997),
Mich
1
NW2d
(1997). It also
previous
coincides with
court decisions
that have
examined the
recording requirement,
which the
requirement
tacitly
was
understood
require that the claimant
the lien with the register
file
See
Pipe,
deeds.
Northern Concrete
supra
318,
at
322 (“a lien must be
filed within
after the
last date when
or services
materials
are supplied,”
and
strict
with
“[a]bsent
filing requirement of MCL
. .
570.1111(1)
.
see
.”);
Superior
also
Systems,
Steel
Inc v
Nuggets,
Nature’s
Inc,
Affirmed. J., concurred.
Cooper,
J.
I
(dissenting).
respectfully dissent.
In
Wilder,
Northern
Pipe,
Concrete
Inc v Sinacola Cos—Mid-
west, Inc,
I *9 under the Lien a To recover Construction claimant must record the lien within of the last date of material or labor: furnishing 570.1109], right
Notwithstanding section 109 the of [MCL contractor, subcontractor, laborer, supplier a or to a con- unless, struction lien created this act shall cease to exist days furnishing after last of within 90 the lien claimant’s improvement, pursuant labor or material for the to the lien contract, a in the claimant’s claim lien is recorded of office county prop- the deeds for each where the real of of erty improvement which the made is A to was located. only property claim of lien shall be valid аs to the real county described in the claim of lien and located within the claim of lien where the has been recorded. [MCL 570.1111(1) (emphasis added).] dispute case,
To resolve the
in this
we must deter-
mine what constitutes
a claim of lien in
“recording”
of
the office
the
of deeds. This determination
statutory interpretation,
question
is a matter of
a
law that we review de novo.
v Credit Technolo-
Etefia
gies,
App 466,
245 Mich
Inc,
469;
Unless
word
statute,
defined in
ordinary
plain
a statute should be accorded its
meaning, taking into account the context in
which
Phillips
App
Jordan,
17,
words are
v
241 Mich
used,
(2000), citing
22-23, 1;n
within and the of fil- the lien ing register substantially complies the of deeds requirement with the act’s to record the lien claim. contrary plain Because this is conclusion to the meaning act, оf the term used in I “recorded” as the disagree.
First, while term is in “recorded” not defined ample Lien is in Construction there evidence regard the act as as well other statutes with to its entry meaning. relating 565.25, intended MCL entry by register books, the of deeds, effect 249 encumbrance, of certain instruments recording conditions, application, nonexempt per- or perfection, provides part: sons, penalties, and in relevant entry (1) register ... In the book of levies shall enter encumbrances, . . and all. liens other instruments [and] required (2), noting documentation under subsection in the boоks, day, hour, receipt, par- and minute of and other ticulars, appropriate in the columns in the order in which respectively the instruments are received.
(4) The instrument shall be considered as recorded at the persons except time so noted and shall be notice to all subject (2) liens, recorded landowner to subsection rights acquired by pro- and interests or involved in the ceedings. [Emphasis added.] provides
MCL part: 600.2567 relevant (1) following A of deeds is entitled to the ... fees (a) entering recording For and a deed ... or other instru- ment, $5.00 page $2.00 for the first for eaсh additional succeeding page. paid . .. The fee shall be when the .. . instrument is . . record. . left for any (2) proscribed In addition to other fees in subsection (1) , $2.00 (5) a a deeds shall collect fee of entering a deed ... or other instrument. The paid fee shall be when the instrument is record. left for [Emphasis added.] In MCL which 570.1109, describes notices of fur- act, provided: under the form is nishing sample *11 (4) given furnishing, The notice of if not on the form commencement, to the attached notice of shall be in sub- stantially following form:
NOTICE OF FURNISHING To: (name designee (or lessee) from notice of owner or
commеncement) (address commencement) from notice of undersigned furnishing to Please take notice that the is (name contracting party) and address of other certain labor material for
(describe type work) improvement property in connection with the to the real de- liber_, in scribed the notice of comméncement recorded in page_,_records,____ on (name county) [Emphasis added.]
It is
from these statutes that the
apparent
recording
entry
of a lien
take
until an
has been
place
does not
levies,
assignment
made
the book of
with the
оf a
date, hour,
liber and
number
and min
page
noting
ute the
MCL
lien is entered. As both
565.25
MCL
clear,
leaving
600.2567 make
of the instrument for
does not constitute the
record, i.e., filing,
recording
People
Mich
Madigan,
the document. See
v
v
89;
Zabowski,
Precedent from our
Court also
entry
that
in liber must occur to record a document.
(1889),
In
Mercier,
Balen v
Mich 42, 48;
75
Further for the conclusion that does precedent not constitute is found in the several states. In Noren, State v 1224, P2d (Utah, 1980), Supreme “Although the Utah Court held: occasionally the words ‘file’ and ‘record’ have been interchangeably they used somewhat have more fre- quently interpreted implying requiring been as dif-
ferent things. ‘Recorded’ has been held to signify ‘cop-
ied or transcribed into
permanent
some
book’ while
merely
‘filing’ signifies
delivery to
proper
official.”
Id.,
v
citing Beatty Hughes, 61 Cal App
489,
2d
492;
In Markham, Markham v 80 Hawaii 281; 909 P2d 602 (1996), the Appeals Intermediate Court of Hawaii, quoting Dictionary Black’s Law (6th ed), *13 found that document or instrument is considered “[a] recorded when it is to . writing, print- . . ‘commit[ted] ing, ... or the like[,]’ ‘or transcribe[d], or enterfed] a book, file, docket, register, computer tape or disc, or the like, for the purpose of preserving authentic ” evidence . . . the purpose giving notice.’ [and] for [Emphasis added.] majority rejects application plain of the mean-
ing the term “recorded,” under the circumstances of this case, as inconsistent with both the intent of the Legislature and the holding Northern Concrete Pipe, supra. I with disagree this conclusion because Supreme Court’s holding in Northern Concrete Pipe, supra, adopts the strict compliance rule. statutory
It is a cardinal rule of construction that a clear unambiguous interpretation and statute warrants no further requires compliance provisions, full with its as written. Within the however, Legislature Construction Lien provided exception rule, an to that in the form of the “sub- compliance” provision. stantial exception, provi- As this an. interpreted nullify sion altogether should not be gen- to interpreted eral rule that statutes should be consistent with plain unambiguous meaning. their (cita- at 320-321 [Id. omitted).] tions Supreme
In Court noted in interpreting § the stat- Pipe, supra, Northern Concrete that because “ hen exist’ if not emphasizes ute that the “cease to [s] pro- within the deadline . . . recorded [the compli- . . suited to a vision not. well ‘substantial is] . ...” Id. at on apphcation goes ance’ 323. The Court to state that Legisla- case before us is a clear instance in which the [t]he imposed precise requirement. a more
ture сould not have quali- 570.1111(1); 26.316(111)(1) MCL MSA states without right that a subcontractor’s to a lien ceases to exist fication county if not recorded in the office of of deeds ninety days furnishing within after the last of labor or mate- (emphasis added).] rial. at 323-324 [Id. my
hi view, the term “recorded” to interpreting entry in only mean the book of levies not is consis- plain tent with the of the but is meaning statute con- require sistent with Legislature’s intent strict particular provision with this notice hand, property the act. On the other owners and sub- sequent purchasers who check the book levies after and find no recordatiоn of a claim merely of lien will “filed,” lack notice of a claim certainty thus will lack of title under the result *14 by majority. pointed by reached the As out the Supreme Court, “certainty only of title could be by achieved these researching [under circumstances] complete history improvements the respect with particular parcel property a and painstakingly contractor, waivers of lien from each sub- obtaining contractor, supplier, materials and laborer.” Id. at 322. majority attributing delays also concludes that in recording register deeds to hеn claimants would lead to absurd and unfair not contem- results v Commerce
plated by Legislature. I agree Legislature that the likely did contemplate not that register of deeds timely perform would fail to imposed the duties on the register However, departure from the statute. . literal construction of the Construction Lien Act is a
diversion proper from this Court’s task determining expressed the Legislature’s People intent. v McIntire, n 147, 156, 2; such, NW2d 102 As (1999). I cannot accept majority’s conclusion that rules of statutory permit construction the tacit under the term standing really “recordеd” in the act means supra. filed. Macomb Co A Prosecutor, goose simply duck, is not a even if may it as though sound it quack. has a
Where lien claimant files the claim before the ninety-day deadline recording (as Central, ksi, Cappy did this the hen case), claimant is not with- out remedies to timely ensure The claim- recording. ant, which unlike all others knows the claim has been filed, can examine the book of levies before the expires deadline to determine whether recording has occurred. Where the deadline is near expiration yet and the hen has recorded, to be request lien claimant can immediate action from the or extraordinary seek remedies in the circuit any case, court. In the difficulties attendant in deter- mining timely whether the is performing the justification duties of the office are not for this Court to redefine commonplace and unambiguous statu- tory term “recorded.” Mclntire, supra at n 3. The policy with regard choice to whether notice under provided by these circumstances should be is best left to the Legislature. *15 249 Mich by Wilder, judg- reasons, I would reverse the the above For entry of an of the lower court remand ment summary disposition granting in favor of defen- order Department of Commerce. dant