Lead Opinion
This case concerns several facets of the public works bond act (PWBA), MCL 129.201 et seq. First, it poses the question of whether actual notice is required for a sub-subcontractor to recover on a payment bond when that sub-subcontractor has complied with the notice requirements set forth in MCL 129.207. Second, the case raises the question of whether a
I. PACTS AND PROCEDURAL HISTORY
In 2009 and 2010, the south wing of the Detroit Public Library was renovated. Defendant KEO & Associates, Inc. (KEO) was the principal contractor for this project. Defendant Westfield Insurance Company (Westfield) supplied KEO with a payment bond worth $1.3 million, as required by the PWBA. KEO was identified as the principal contractor and Westfield as the surety on the bond. KEO subcontracted with defendant Electrical Technology Systems, Inc. (ETS) to provide labor and materials for electrical work. The agreement between KEO and ETS included a pay-if-paid clause, obliging KEO to pay ETS only after KEO had been paid for the relevant portion of work performed.
On March 3, 2010, when it began work on the library project, Wyandotte sent letters to KEO and Westfield
Throughout the renovation project, KEO made progress payments to ETS totaling more than $248,000,
On January 28, 2011, Wyandotte filed a claim directly with Westfield to recover on the payment bond. Westfield denied the claim, asserting a lack of liability. Consequently, on March 14, 2011, Wyandotte filed suit against ETS, KEO, and Westfield. KEO filed a cross-claim against ETS on March 29, 2011. ETS had apparently gone out of business, and its president had declared personal bankruptcy, so it failed to appear and was defaulted. Wyandotte continued to pursue claims against KEO and Westfield on the basis of the surety bond.
On September 7, 2011, Wyandotte moved for summary disposition under MCR 2.116(0(10), which tests the factual sufficiency of a complaint. The trial court heard oral argument on whether there was a valid bond claim when KEO had not received the 30-day notice of furnishing and whether Wyandotte could recover the 1.5% time-price differential and attorney fees on a bond claim. On November 4, 2011, the trial court granted Wyandotte’s motion in part, concluding that there was a valid bond claim because Wyandotte had complied with the notice requirements and that Wyandotte could recover the time-price differential as well as attorney fees. The only remaining issue was the amount of damages, and a bench trial was held on that narrow question. The trial court found that the unpaid balance owed to Wyandotte was $154,343.29, that Wyandotte was entitled to a total time-price differen
II. NOTICE UNDER THE PWBA
Defendants first contend that Wyandotte did not have a cause of action against them because KEO did not receive Wyandotte’s 30-day notice. We review a trial court’s summary disposition order de novo. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). Likewise, questions of statutory interpretation are subject to review de novo. Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265, 278; 831 NW2d 204 (2013). When interpreting a statute, our foremost rule of construction is to discern and give effect to the Legislature’s intent. Aroma Wines & Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich 337, 345; 871 NW2d 136 (2015). Because the language chosen is the most reliable indicator of that intent, we enforce clear and unambiguous statutory language as written, giving effect to every word, phrase, and clause. Id. at 345-346.
Traditionally, public property cannot be the subject of a lien unless a statute specifically permits it. Knapp v Swaney, 56 Mich 345, 347; 23 NW 162 (1885). The Legislature enacted the PWBA to protect contractors
MCL 129.207 provides for recovery under a principal contractor’s payment bond, but prescribes a two-step notice procedure for a remote party from the principal contractor’s perspective, that is, one lacking a direct contractual relationship with the principal contractor:
A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless (a) he has within 30 days after furnishing the first of such material or performing the first of such labor, served on the principal contractor a written notice, which shall inform the principal of the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identifying the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials, and (b) he has given written notice to the principal contractor and the governmental unit involved within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the*139 last of the material for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed. Each notice shall be served by mailing the same by certified mail, postage prepaid, in an envelope addressed to the principal contractor, the governmental unit involved, at any place at which said parties maintain a business or residence.
Defendants’ argument is that there can be no liability under the PWBA because KEO never actually received the 30-day notice—i.e., there was a failure of service.
Furthermore, service of notice is mandatory under MCL 129.207, because the statute declares that a party “shall not have a right of action upon the payment bond unless” the two notices are provided and states that the two notices “shall inform” the specified parties of certain information. However, the Legislature did not specify that actual receipt of notice is a requirement of the PWBA, although it has done so in other statutes. Some statutes mandate that a party provide service by taking actions “reasonably calcu
Defendants ask us to overlook the fact that Wyan-dotte sent its 30-day notice of furnishing via certified mail, return-receipt requested, and render a decision based on the fact that KEO did not receive that notice.
This Court previously considered the notice requirements of the PWBA in Pi-Con, Inc v A J Anderson Constr Co, 435 Mich 375; 458 NW2d 639 (1990). Defendants maintain that this Court held in Pi-Con that the PWBA contains an actual notice requirement. In Pi-Con, a supplier of materials and services to a subcontractor on a public works project sent its notice of furnishing to the principal contractor via ordinary first-class mail rather than, as required by statute, by certified mail. Id. at 378-380. The Pi-Con Court reviewed the United States Supreme Court’s construction of the Miller Act, 40 USC 3131 et seq., the federal analog to the PWBA, in Fleisher Engineering & Constr Co v United States ex rel Hallenbeck, 311 US 15; 61 S Ct 81; 85 L Ed 12 (1940), in which the Supreme Court observed:
We think that the purpose of this provision [notice by certified mail requirement] as to manner of service was to assure receipt of the notice, not to make the described method mandatory so as to deny right of suit when the required written notice within the specified time had actually been given and received. In the face of such receipt, the reason for a particular mode of service fails. It is not reasonable to suppose that Congress intended to insist upon an idle form. Rather, we think that Congress intended to provide a method which would afford sufficient proof of service when receipt of the required written notice was not shown. [Id. at 19.]
Defendants refer to the following portion of Pi-Con to support their contention that the PWBA contains an actual notice requirement:
First, a claimant must prove that the principal contractor actually received notice. Second, the notice must relate "the nature of the materials being furnished or to be furnished, or labor being performed or to be performed and identifyD the party contracting for such labor or materials and the site for the performance of such labor or the delivery of such materials . . ..” Third, the notice sent must have been written. Fourth, the notice must have been received within the time limits prescribed by the statute. [Id. at 382 (citation omitted; alteration in original).]
But the factual underpinnings of Pi-Con are dissimilar to those in this case, and those dissimilarities affect our approach to the PWBA’s notice requirements. Pi-Con and the other Michigan cases that have previously addressed the notice requirement of MCL 129.207 all involved parties who failed to employ the statutorily prescribed delivery method—certified mail. See, e.g., Pi-Con, 435 Mich at 380 (notice sent by ordinary first-class mail); Thomas Indus, Inc v C & L Electric, Inc, 216 Mich App 603, 605-608; 550 NW2d 558 (1996) (no notice mailed but all required information included on packing slips with shipments of materials). In this case, by contrast, the parties do not dispute that Wyandotte sent notice via certified mail, although KEO apparently did not receive it. In this
We reaffirm the continuing application of Pi-Con’s rule in cases in which a would-be PWBA claimant fails to comply with the particular method of service specified in MCL 129.207. To deny a PWBA claim when a preponderance of the evidence demonstrates that notice was actually received would improperly “elevat[e] form over substance.” Pi-Con, 435 Mich at 385. Similarly, it would be more than passing strange to penalize a claimant for complying with the notice provisions outlined in the statute, as Wyandotte has done here. We conclude that, when a claimant has complied with the notice procedures set forth by the Legislature in MCL 129.207, there is no actual notice requirement.
III. RECOVERABILITY OF A TIME-PRICE DIFFERENTIAL AND ATTORNEY FEES
In prevailing on its PWBA claim, Wyandotte was awarded a judgment in the trial court that included a time-price differential and attorney fees, which had been provided for in its contract with ETS. To the extent that this issue is one of statutory interpretation of the PWBA, we review it de novo. Elba Twp, 493 Mich at 278. To the extent that it involves interpreting the contract between Wyandotte and ETS, this is also a question subject to review de novo. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). Our
The PWBA permits an unpaid supplier of materials or labor to “sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of the civil action, prosecute such action to final judgment for the sum justly due him and have execution thereon.” MCL 129.207. Wyandotte sought payment based on its prior contracts with ETS: the open-account agreement enacted in 2003, the bid Wyandotte made for the Detroit Public Library project in 2009, and the ensuing purchase orders. Wyandotte argued, and the lower courts agreed, that Wyandotte was entitled to the unpaid balance on the materials and supplies it had provided as well as further damages based on the following two provisions that appeared in the open-account agreement:
TIME PRICE DIFFERENTIAL Time price differential charges of V-h% per month (18% per annum) are calculated on all invoices that are not paid and past due 30 days or more. You will be issued a separate invoice detailing these (finance) charges.
* * *
PAST DUE ACCOUNTS Accounts that are past due will be taken off open account and placed on C.O.D. until their account is brought back into current status. In the event your account is placed in the hands of an attorney for collection after default, the customer agrees to pay 33% of the unpaid balance for attorney’s fees together with applicable costs.
The time-price differential provision also appeared on the quote for the library project.
The dispositive question here is rather the meaning of “sum justly due” in MCL 129.207. The statute merely states that a complainant may sue “on the payment bond for the amount, or the balance thereof, unpaid” and that a final judgment may be rendered for the “sum justly due . . . .” MCL 129.207. Neither of these phrases explicitly informs us whether the Legislature intended to encompass additional contractual provisions, such as time-price differential fees or attorney fees, as part of the sum justly due.
Payment shall be due 30 days after the date of the statement. A service charge of IV2 percent per month on the unpaid balance will be due on all amounts unpaid for 30 days after the due date. A 5% cash discount is applicable if paid within 30 days of the date of statement providing no other indebtedness to Price Brothers Company is delinquent. [Id. at 376.]
The Court of Appeals considered whether the service charge constituted a separate extension of credit or a “flexible price factor employed to reflect plaintiffs increased costs when its bills are not paid promptly.”
Wyandotte’s position, and that adopted by the Court of Appeals, is that the sum justly due for PWBA purposes is the amount provided for in the claimant’s contract, regardless of whether the principal contractor and its surety have agreed to that contract’s terms. An alternative position is to use the value of the labor or materials. We conclude that the former approach is more consistent with the plain language of the PWBA, which refers to the “amount. . . unpaid” at the time of institution of the action and does not expressly state (or limit) what kinds of damages are recoverable. This phrase implies a previous expectation of payment of a certain sum. In the absence of any further direction from the Legislature regarding how the amount unpaid ought to be determined, the most logical recourse is to the claimant’s underlying contract, which best illustrates the intent and expectations of the parties to the contract. The Legislature does not differentiate the amount unpaid from the sum justly due, and we understand that sum to be determined based on the trial court’s fact-finding as to the amount unpaid.
Because we use the contract to determine the sum justly due, we must ascertain what actually constituted the contract in this case. There were multiple written instruments evidencing the agreement between Wyandotte and ETS: the open-account agree
The open-account agreement includes provisions regarding both a time-price differential and attorney fees. The later quote for the library project reiterated the time-price differential provision but was silent regarding attorney fees. But because the quote did not contradict the attorney fees clause present in the initial agreement, we conclude that the documents are not inconsistent and that the later quote and purchase orders did not supersede the initial agreement. See Culver, 126 Mich App at 828. Accordingly, both the open-account agreement and the subsequent agreements relating specifically to the library project apply here.
The payment bond shall be in an amount fixed by the governmental unit but not less than 25% of the contract amount solely for the protection of claimants, as defined in [MCL 129.206], supplying labor or materials to the principal contractor or his subcontractors in the prosecution of the work provided for in the contract. [Emphasis added.]
See also MCL 129.202. As with MCL 129.201, the phrase “the contract” in MCL 129.203 must refer to the primary contract between a principal contractor and a governmental unit. MCL 129.203 directs the principal contractor to obtain a payment bond; in stating that the payment bond shall be in an amount not less than 25% of the contract amount, the statute clearly indicates that the term “the contract” refers to the primary contract, because the principal contractor does not obtain separate payment bonds for each lesser contract with a subcontractor. Therefore, the discussion in MCL 129.207 of “[a] claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which payment bond is furnished under the provisions of [MCL 129.203]” refers to that primary contract yet again. It does not limit a PWBA claimant’s reasonably expected recovery when the claimant is a sub-subcontractor.
At the time Wyandotte commenced this action, ETS had already fallen behind on its payments to Wyan-dotte for the materials it had provided in connection with the library project. The time-price differential referred to in the contracts between Wyandotte and ETS was in play, reflecting the increased cost to Wyandotte as ETS’s bills went underpaid or unpaid. Therefore, a time-price differential was part of the amount unpaid and due to Wyandotte when it instituted the instant action against defendants. The trial court properly included the time-price differential as part of the judgment in Wyandotte’s favor.
Regarding attorney fees, defendants correctly argue that Michigan follows the American rule, which provides that attorney fees are not to be awarded unless specifically provided for by a statute, rule, or contractual provision. Watkins v Manchester, 220 Mich App
We conclude that, because the underlying contract is the source by which we determine what relief a PWBA claimant may seek, Wyandotte is entitled to the time-
IV. INTEREST ON THE JUDGMENT
The trial court awarded, and the Court of Appeals affirmed, postjudgment interest to Wyandotte under MCL 600.6013(7), which provides:
For a complaint filed on or after July 1, 2002, if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate was legal at the time the instrument was executed. If the rate in the written instrument is a variable rate, interest shall be fixed at the rate in effect under the instrument at the time the complaint is filed. The rate under this subsection shall not exceed 13% per year compounded annually.
Defendants contend that this was not the proper section under which to calculate interest on the judgment. We review this question of statutory interpretation de novo and seek to effect the Legislature’s intent, turning first to the plain language of the statute. See Elba Twp, 493 Mich at 278.
MCL 600.6013(7) applies when certain criteria are met: the judgment must be “rendered on” a written instrument, the instrument must evidence indebtedness, and there must be a specified interest rate. This issue may be resolved based upon the first criterion. “Render” means, in relevant part, “to cause to be or become” and “to hand down (a legal judgment).” Merriam-Webster’s Collegiate Dictionary (11th ed). To the extent that “render” is a technical legal term, to render means “to deliver formally” when undertaken
The judgment here was not rendered on a written instrument. Regardless of whether the documents evidencing the contract between Wyandotte and ETS can even be said to constitute a written agreement for purposes of interest on the judgment, the judgment in this case was not rendered on them. Although the contract between Wyandotte and ETS defined the scope of the damages that Wyandotte was entitled to seek under the PWBA, the underlying claim was not a contract claim.
We conclude that MCL 129.207 did not require actual receipt of notice by the principal, that a time-price differential and attorney fees were part of the sum justly due to Wyandotte under its contracts, and that interest on the judgment should have been calculated under MCL 600.6013(8) rather than MCL 600.6013(7). Accordingly, we affirm in part and reverse in part the judgment of the Court of Appeals and remand to the trial court for entry of a judgment consistent with these holdings.
The term “time-price differential” refers to the difference between the current cash price of an item and the cost of purchasing the item with credit. A payment made with cash is immediate; a payment made with credit is not. Thus, when a payment is made with credit, the seller is burdened by a cash-flow interruption. A time-price differential compensates for the increased cost to a seller for credit. It reflects the difference between the credit price and the cash price. Price Bros Co v Charles J Rogers Constr Co, 104 Mich App 369, 377; 304 NW2d 584 (1981), citing Silver v Int'l Paper Co, 35 Mich App 469, 470; 192 NW2d 535 (1971). Despite the contract provision, Wyandotte’s business practice was to wait 60 days to pursue the time-price differential.
KEO claims to have paid more than it owed; ETS claims that KEO failed to pay what it owed to ETS. In any case, Wyandotte nndispntedly did not receive full payment.
Because KEO and Westfield’s financial interests with respect to this project are aligned, they have filed joint arguments in this appeal. We refer to them jointly as “defendants” throughout this opinion.
The attorney fees award was agreed to by the parties and was less than the attorney fees provided for in the contract.
The final award also included, under MCR 2.403(0), $12,180.97 for fees and costs arising out of defendants’ rejection of a case evaluation.
Defendants do not argue in this Court that Wyandotte failed to serve the 90-day notice required by MCL 129.207.
At oral argument, defendants additionally suggested that service with return-receipt requested was not in conformity with MCL 129.207. We do not find compelling defendants’ contention that Wyandotte failed to comply with the statute when it took the additional precaution of sending its correspondence return-receipt requested. The plain language of MCL 129.207 does not require a return receipt, and we decline to read such language into the statute. But we also do not believe that a party that requests a return receipt when sending notice by certified mail is not entitled to a right of action on a payment bond under MCL 129.207.
We acknowledge that there may be an issue with regard to whether the “attorney fees” requested by Wyandotte are appropriately referred to as such. In this case, the term “attorney's fees” arises out of a “PAST DUE ACCOUNTS” provision in ETS’s open-account agreement with Wyandotte and differs from a traditional attorney fees provision. For the sake of simplicity, we follow the language used in the contract, and by the parties and the Court of Appeals, in continuing to use the term “attorney fees.”
We recognize Chief Justice Young’s argument in his partial dissent that MCL 129.207 limits a claimant to recovery of a sum “integrally related to the cost of labor or materials furnished for the project.” We find no statutory support for this conclusion. Contrary to his reading of MCL 129.207, the language “[a] claimant who has furnished labor or material in the prosecution of the work provided for in such contract” merely serves to identify who may make a claim under the PWBA—a party who has furnished labor or materials. It does not by its plain language place a limit on what such a claimant may seek to recover.
Moreover, we discern little reason for distinguishing between (1) the materials price itself; (2) the time-price differential provision, which is related to the materials price; and (3) the attorney fees provision, which also constitutes part of the contract bid. Wyandotte’s decision to actually price materials at a particular level in the contract bid was presumably a function of all the other contract provisions, including those pertaining to the time-price differential and attorney fees. That is, Wyandotte presumably adjusted its materials price downward, at least to some
We also note that our conclusion is consistent with how several federal circuits have interpreted the Miller Act. See United States ex rel Maddux Supply Co v St Paul Fire & Marine Ins, 86 F3d 332, 336 (CA 4, 1996) (“The Miller Act does not, by its own terms, provide for attorney’s fees or interest. Several circuits have held, however, that interest and attorney’s fees are recoverable if they are part of the contract between the subcontractor and supplier.”).
As noted earlier in this opinion, the open-account agreement states that “[i]n the event [ETS’s] account is placed in the hands of an attorney for collection after default, [ETS] agrees to pay 33% of the unpaid balance for attorney’s fees together with applicable costs.”
Even though the parties have not raised this issue, in his partial dissent Chief Justice Young contends that the attorney fees provision was not triggered before Wyandotte sent its 90-day notice to defendants and, therefore, Wyandotte cannot claim attorney fees. He argues that MCL 129.207 limits a claimant’s potential recovery to the amount unpaid 90 days after supplying the last of the labor or materials in question. This argument fundamentally misunderstands the 90-day provision of MCL 129.207, which merely creates a notice requirement. It does not purport to preclude claimants from recovering damages that accrue after the 90-day notice is served. Chief Justice Young’s partial dissent implicitly recognizes this point by agreeing that the time-price differential is recoverable under the statute—including the amounts that accrued after Wyandotte sent its 90-day notice to KEO on November 1, 2010. This conclusion is made emphatically clear by the first sentence of MCL 129.207, which allows a claimant to seek “the amount, or the balance thereof, unpaid at the time of institution of the civil action,” not the amount unpaid 90 days after the claimant ceased performance.
Because both the lay and legal dictionary definitions of “render” are substantially similar, we need not determine whether it is a legal term of art or a common term. See Brackett v Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207 (2008).
By contrast, Wyandotte’s action directly against ETS, which ended in a default judgment, was a breach of contract claim. A judgment in such a case could be said to be rendered on the contract.
Concurrence in Part
(concurring in part and dissenting in part). This case addresses the issue of whether a claimant under the public works bond act (PWBA)
I. FACTS AND PROCEDURAL HISTORY
Defendant KEO & Associates, Inc. (KEO) was the principal contractor on a renovation project at the Detroit Public Library in 2009. As required under the PWBA, defendant Westfield Insurance Company (West-field) supplied a payment bond and stood as surety on the bond.
KEO subcontracted with defendant ETS to provide labor and materials for electrical work on the renovation project. ETS then subcontracted with plaintiff Wyandotte for materials and supplies, making Wyan-dotte a sub-subcontractor in relation to KEO. ETS and Wyandotte had been in an open-account agreement since 2003, and this contract also governed ETS’s purchases from Wyandotte during the library renovation. The contract specified that ETS would pay Wyan-dotte a time-price differential of 1.5% per month (18% per annum) on invoices unpaid after 30 days. This provision represented an interest rate for purchases ETS made on credit. The contract also specified that ETS would pay 33% of any unpaid balance as an
Wyandotte submitted a quote to ETS that included the time-price differential provision. ETS accepted this quote by issuing a purchase order to Wyandotte on February 19, 2010. Wyandotte began delivering materials to ETS on March 3, 2010, and made its last delivery on September 30, 2010. Over the course of the project, ETS became increasingly behind in its payments to Wyandotte. Eventually, ETS stopped payment altogether and went out of business. Though KEO claims it paid ETS all that was owed, Wyandotte never received full payment from ETS. As required by the PWBA, Wyandotte sent notice to KEO and West-field on November 1, 2010, claiming it was owed $150,762.33 for electrical materials furnished to ETS and the time-price differential. Wyandotte filed a claim with Westfield on January 28, 2011, to recover on the payment bond. Westfield denied the claim.
Wyandotte filed a PWBA suit against ETS, KEO, and Westfield on March 14, 2011, and moved for summary disposition. The trial court granted the motion in part, holding that the bond claim was valid and that, under its contract with ETS, Wyandotte could recover both the time-price differential and attorney fees. A bench trial was held on the issue of damages. The trial court held that Wyandotte was owed a balance of $154,343.29, a time-price differential of $76,403.44, and attorney fees of $30,000. Wyandotte requested postjudgment interest under MCL 600.6013(7), which the trial court granted. The Court of Appeals affirmed this judgment in an unpublished opinion.
II. ATTORNEY FEES
MCL 129.207 of the PWBA reads as follows:
*157 A claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which payment bond is furnished under the provisions of [MCL 129.203], and who has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which claim is made, may sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of the civil action, prosecute such action to final judgment for the sum justly due him and have execution thereon.[3 ]
When contractors are not fully paid after providing labor or materials for a public project, this statute permits them to sue on the payment bond for the amount unpaid at the time the civil action is instituted. The extent of defendants’ statutory liability is the “sum justly due.”
I dissent from the majority opinion as to its further analysis of, and conclusion regarding, the attorney fee provision. The majority holds that, merely because the attorney fee provision was part of the open-account agreement with ETS, the trial court appropriately included the attorney fee in its judgment. This approach treats the PWBA as if it creates a statutory breach of contract claim. I respectfully disagree. The statute only makes compensable the unpaid costs of labor or materials furnished. Thus, the statute limits a claimant’s recovery to the contractual terms that are related to the price of labor or materials furnished. While both the time-price differential and the attorney fee provision are listed in Wyandotte’s agreement with ETS, only the former actually relates to the cost of furnishing the materials, so the trial court should not have awarded Wyandotte an attorney fee.
I would hold that MCL 129.207 requires us to consider whether a provision of an underlying contract used to determine the expectancy of the unpaid contractor is integrally related to the cost of labor or materials furnished for the project. MCL 129.207 allows a claimant to sue on the payment bond for the amount unpaid and recover the sum justly due him. The statute defines the amount unpaid in terms of the cost of labor and materials provided on the project, stating that “[a] claimant who has furnished labor or material. . . and who has not been paid in full therefor . . . may sue on the payment bond for the amount,
Furthermore, the PWBA limits the claimant’s recovery based on when certain price terms are triggered. MCL 129.207 states:
A claimant who has furnished labor or material in the prosecution of the work . . . and who has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which claim is made, may sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of the civil action, prosecute such action to final judgment for the sum justly due him and have execution thereon. A claimant not having a direct contractual relationship with the principal contractor shall not have a right of action upon the payment bond unless . . . he has given written notice to the principal contractor and the governmental unit involved within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which the claim is made, stating with substantial accuracy the amount claimed and the name of the party to whom the material was furnished or supplied or for whom the labor was done or performed.[8 ]
Under this interpretation, Wyandotte’s claim is for the cost of materials furnished, limited to the price terms under the contract that came due by the 90-day deadline. Notably, the statute required Wyandotte to notify KEO and Westfield of its claim, “stating with substantial accuracy the amount claimed .. . .”
[T]he differential is an integral part of the cost of the transaction. If the buyer pays cash, the seller receives the money immediately and no burden is placed on him. If the buyer elects to purchase on credit, the seller is burdened by the interruption to its cash flow, and so the buyer may pay a “price” for the benefit of receiving the materials without paying for them immediately.[14 ]
Accordingly, the time-price differential is an integral part of the sum justly due for materials Wyandotte supplied on the renovation project because it establishes an interest rate that directly relates to the price of the materials Wyandotte furnished when ETS paid on credit.
Furthermore, the attorney fee provision did not trigger by the 90-day deadline. In its 90-day notice to KEO and Westfield, dated November 1, 2010, Wyan-dotte claimed that the amount owed included the cost of materials furnished to ETS and the time-price differential. Wyandotte did not claim that it was owed an attorney fee because the provision had not yet triggered—Wyandotte did not sue ETS, KEO, and Westfield until March 14, 2011, which was well after the 90-day period that began to run on September 30, 2010. Thus, Wyandotte’s “amount claimed”
Therefore, while I agree with the majority that the time-price differential was properly included in Wyan-dotte’s award, I would hold that Wyandotte is not entitled to the attorney fee award because it is not directly related to the cost of materials it supplied. The attorney fee provision also triggered after the 90-day deadline created by the statute.
III. POSTJUDGMENT INTEREST
There are two relevant statutes on postjudgment interest in this case. Defendants argue that postjudg
For a complaint filed on or after July 1, 2002, if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate was legal at the time the instrument was executed. If the rate in the written instrument is a variable rate, interest shall be fixed at the rate in effect under the instrument at the time the complaint is filed. The rate under this subsection shall not exceed 13% per year compounded annually. [18 ]
MCL 600.6013(7) only applies when the judgment is rendered on a written instrument. According to the majority, this means MCL 600.6013(7) only applies if the written instrument is the actual basis of the judgment. However, I believe that the majority mistakenly concludes that the judgment was rendered on the PWBA rather than on a written instrument. As noted in the majority opinion and earlier in this opinion, although the PWBA creates Wyandotte’s cause of action, the trial court must examine the underlying agreement between Wyandotte and ETS to determine
But there is an even more compelling reason to reject MCL 600.6013(7) as the basis for determining postjudgment interest. MCL 600.6013(7) does not apply because the underlying contract does not evidence indebtedness. MCL 600.6013(7) only applies “if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate . . . .”
IV. CONCLUSION
I do not believe Wyandotte is entitled to attorney fees. The so-called attorney fees specified in Wyan-dotte’s agreement with ETS are not related to the price of the materials Wyandotte furnished nor did the provision trigger by the statute’s 90-day deadline. Therefore, I would hold that attorney fees are not recoverable as a sum justly due and reverse the Court of Appeals on this issue. Furthermore, I do not agree with the majority’s reasoning regarding the award of postjudgment interest. Nevertheless, I concur with the majority’s conclusion that postjudgment interest should have been calculated under MCL 600.6013(8) rather than MCL 600.6013(7).
MCL 129.201 et seq.
Though I concur in the majority’s statement of the facts, I restate the most relevant facts here for the sake of clarity.
Emphasis added.
MCL 129.207.
Id.
Because each instrument was related to the same subject matter (i.e., Wyandotte’s provision of materials to ETS), we read these instruments together, as required under Culver v Castro, 126 Mich App 824, 826; 338 NW2d 232 (1983), citing Reber v Pearson, 155 Mich 593; 119 NW 897 (1909). Furthermore, the PWBA allows sub-subcontractors, like
MCL 129.207.
Id. (emphasis added).
Id.
Id.
Id.
The majority misconstrues my argument, stating, “He argues that MCL 129.207 limits a claimant’s potential recovery to the amount unpaid 90 days after supplying the last of the labor or materials in
I am not persuaded by the majority’s argument, citing United States ex rel Maddux Supply Co v St Paul Fire & Marine Ins, 86 F3d 332 (CA 4, 1996), that certain federal circuit courts have interpreted the Miller Act, 40 USC 3131 et seq., to allow recovery of attorney fees. In Maddux Supply Co, the Fourth Circuit specifically noted that allowing recovery of attorney fees was consistent with its prior rulings “that contractors and their sureties are obligated to pay amounts owed by their subcontractors to suppliers.” Id. at 336. The PWBA does not require a general contractor or its surety to pay the amount owed by a subcontractor to a sub-subcontractor. Instead, as I have explained, the PWBA explicitly
Price Bros Co v Charles J Rogers Constr Co, 104 Mich App 369, 377; 304 NW2d 584 (1981) (emphasis added).
See UAW-GM Human Resource Ctr v KSL Recreation Corp, 228 Mich App 486, 508; 579 NW2d 411 (1998) (“A liquidated damages provision is simply an agreement by the parties fixing the amount of damages in case of a breach.”). In this agreement, if ETS breaches by defaulting on its payments and Wyandotte must litigate to recover the amount owed, the attorney fee provision fixes Wyandotte’s damages: Wyandotte may recover the unpaid balance plus an additional 33% of that unpaid balance. In regard to attorney fee provisions and liquidated damages clauses, Williston on Contracts states:
It is a common provision in promissory notes, and an occasional stipulation in other kinds of contracts, especially mortgages, that in case of breach, the promisor will pay an attorney’s fee, the percentage or amount of which is sometimes stated, for enforcing the obligation. There seems no occasion to distinguish between mortgages and other contracts with reference to such a provision, which is clearly in the nature of a liquidated damages provision.
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MCL 129.207.
MCL 600.6013(8) states:
Except as otherwise provided in subsections (5) and (7) and subject to subsection (13), for complaints filed on or after January 1,1987, interest on a money judgment recovered in a civil action is calculated at 6-month intervals from the date of filing the complaint at a rate of interest equal to 1% plus the average interest rate paid at auctions of 5-year United States treasury notes during the 6 months immediately preceding July 1 and January 1, as certified by the state treasurer, and compounded annually, according to this section.
Emphasis added.
Emphasis added.
See MCL 8.3a (“[T]echnical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”).
See Const 1963, art 9, § 31 (“The limitations of this section shall not apply to taxes imposed for the payment of principal and interest on bonds or other evidence of indebtedness .. ..”); MCL 12.272(d) (“ ‘Bond’ means a bond, note, financial instrument, or other evidence of indebtedness or obligation issued by the authority under this act.”); MCL
Concurrence in Part
(concurring in part and dissenting in part). This case primarily addresses a single statute, MCL 129.207, under the public works bond act (PWBA).
I. ATTORNEY FEES AND THE TIME-PRICE DIFFERENTIAL
My disagreement with the majority arises under the first sentence of MCL 129.207, which states:
A claimant who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which payment bond is furnished under the provisions of section 3, and who has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which claim is made, may sue on the payment bond for the amount, or the balance thereof, unpaid at the time of institution of the civil action, prosecute such action to final judgment for the sum justly due him and have execution thereon.[3 ]
The majority’s analysis rests on a false premise. The principal contractor, KEO & Associates, Inc., was not a party to the claimant’s underlying contract. The contract between subcontractor Electrical Technology Systems, Inc. (ETS) and remote subcontractor Wyandotte can only illustrate the intent and expectations of ETS and Wyandotte. Indeed, KEO did not contractually agree to pay any of its subcontractors, including ETS, a time-price differential or attorney fees, and there is no basis from which to conclude that KEO would have agreed to pay a time-price differential or attorney fees to a party with whom it had no contractual relationship.
There is no dispute among my colleagues that MCL 129.207 provides a remote subcontractor with a right of action on the payment bond even though it lacks a
Further, MCL 129.207 does not suggest that the principal contractor must wholly indemnify claimants under the PWBA. Rather, MCL 129.207 refers to the extent of a principal contractor’s liability under the payment bond by identifying the claimant’s “labor or material in the prosecution of the work” for which the claimant “has not been paid in full therefor before the expiration of a period of 90 days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which claim is made .. ..” This provision identifies the labor and materials that form the basis of the “amount, or the balance thereof, unpaid at the time of institution of the civil action” that the claimant may bring such action for “the sum justly due him .. ..” While a subcontractor has an actual contract with the principal contractor to determine the labor and materials it may seek to recoup under the payment bond, a remote contractor does not have a direct contractual relationship with the principal contractor. For this reason, MCL 129.207 provides, in regard to remote subcontractors, that the claimant must provide notice “within 90 days from the date on which the claimant performed the last of the labor or furnished or supplied the last of the material for which
To the extent that attorney fees and a time-price differential may even be considered incidental damages, as opposed to remote damages, they are simply not recoverable. Further, and perhaps more telling, is that even expenses expressly identified cannot be recovered unless they are “directly applicable to the contract.”
Further, MCL 129.203 provides:
The payment bond shall be in an amount fixed by the governmental unit but not less than 25% of the contract amount solely for the protection of claimants, as defined in [MCL 129.206], supplying labor or materials to the principal contractor or his subcontractors in the prosecution of the work provided for in the contract.
The principal contractor’s liability to remote contractors under the PWBA is solely based on the payment bond. The amount of the payment bond is fixed by the governmental unit at no less than 25% of the contract. If a claimant successfully sues on the pay
This limitation of the principal contractor’s liability to remote subcontractors is precisely the reason that the PWBA does not provide for remote subcontractors to seek to enforce any and all collateral terms in the underlying contract. If a single claimant or several claimants exhaust the payment bond through an award of a time-price differential and attorney fees, another remote contractor may not be able to recoup the actual labor and materials it supplied for the public project. By green-lighting the recovery of remote damages found in the underlying contracts between subcontractors and remote subcontractors, the majority arbitrarily countenances the shortchanging of other remote contractors. In my view, this effectively thwarts the Legislature’s intent that the payment bond be used “solely for the protection of claimants . . . .” MCL 129.203. The majority has clearly departed from the statutory language by imposing liability for the amount provided for in the claimant’s contract, regardless of whether the principal contractor and its surety have agreed to that contract’s terms.
II. POSTJUDGMENT INTEREST
The trial court awarded Wyandotte postjudgment
The majority holds that judgment was rendered on Wyandotte’s statutory claim rather than on the contract itself. This holding misses the entire point of the PWBA. MCL 129.207 expressly provides that a claimant “may sue on the payment bond . . . .”
The payment bond provides that KEO and Westfield Insurance Company
*175 are held and firmly bound unto Detroit Public Library . . . as Obligee ... for the use and benefit of claimants ... in the amount of... $1,302,040.00 ... for the payment whereof [KEO] and [Westfield] bind themselves, their heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
The payment bond expressly incorporates the contract between KEO and the library, and then provides:
THE CONDITION OF THIS OBLIGATION is such that if [KEO] shall promptly make payment to all claimants, as defined in [the PWBA], who have complied with all the provisions of the [PWBA], for labor and materials used in the performance of the Contract, then this obligation shall be void; otherwise it shall remain in full force and effect.
The payment bond is clearly an “instrument” in that it is a “written legal document that defines rights, duties, entitlements, or liabilities . .. ”
III. CONCLUSION
I agree with the majority that a claimant need not provide actual notice to the principal contractor under
MCL 129.201 et seq.
MCL 129.207.
Under MCL 129.206, the term “claimant” means “a person having furnished labor, material, or both, used or reasonably required for use in the performance of the contract.” For purposes of this opinion, a
Ante at 147.
Ante at 147.
Ante at 147.
Under the doctrine of expressio unius est exclusio alterius, the express mention in a statute of one thing implies the exclusion of other similar things. In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999). As applied to statutory interpretation, the doctrine reflects, “among other things, a legislative intent not to create liability outside the extent to which the legislature has acted.” 22 Mich Civ Jurisprudence, Statutes, § 194.
MCL 129.206.
On this point, I am in agreement with Chief Justice Young’s partial concurrence and dissent. As he states, ante at 163-164:
The language of [the attorney fee provision] indicates that attorney fees are unrelated to the cost of materials because, unlike the time-price differential, they bear no relation to the cost of supplying labor or materials. The attorney fee provision creates a penalty for collection efforts rather than determining Wyandotte’s expectancy—i.e., the price ETS owed for materials Wyandotte supplied. Indeed, it does not appear to be an attorney fee provision at all, because it does not define itself in terms of actual or reasonable attorney fees. It is, in fact, a liquidated damages clause that plaintiff could invoke if it placed an overdue debt into the hands of a collecting attorney. Because this provision describes a liquidated collection cost rather than a cost of the labor or materials themselves, it is not part of the sum justly due.
See MCL 129.206.
MCL 600.6013(7) provides:
For a complaint filed on or after July 1, 2002, if a judgment is rendered on a written instrument evidencing indebtedness with a specified interest rate, interest is calculated from the date of filing the complaint to the date of satisfaction of the judgment at the rate specified in the instrument if the rate was legal at the time the instrument was executed. If the rate in the written instrument is a variable rate, interest shall be fixed at the rate in effect under the instrument at the time the complaint is filed. The rate under this subsection shall not exceed 13% per year compounded annually. [Emphasis added.]
Ante at 163.
Emphasis added.
Black’s Law Dictionary (10th ed).
MCL 600.6013(7).
I also disagree with Chief Justice Young that the agreement between Wyandotte and ETS was as much the basis for the trial court’s judgment as the statute itself.