J Propes Electric Co. v. DeWitt-Newton, Inc.

293 N.W.2d 801, 97 Mich. App. 295, 1980 Mich. App. LEXIS 2655
CourtMichigan Court of Appeals
DecidedMay 5, 1980
DocketDocket Nos. 77-5173, 77-5174, 77-5175, 77-5176
StatusPublished
Cited by2 cases

This text of 293 N.W.2d 801 (J Propes Electric Co. v. DeWitt-Newton, Inc.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J Propes Electric Co. v. DeWitt-Newton, Inc., 293 N.W.2d 801, 97 Mich. App. 295, 1980 Mich. App. LEXIS 2655 (Mich. Ct. App. 1980).

Opinion

V. J. Brennan, J.

This is an appeal from the consolidated trial of four cases in which mechanics’ liens were asserted against the Thunderbird Hilton Inn by five subcontractors and the general contractor, DeWitt-Newton, defendant-appellee. The lower court entered judgment in favor of all of the lienors against IDS, defendant-appellant, the present owner of the Inn. IDS appeals. Subsequent to judgment and the filing of this appeal, the five subcontractors reached a settlement with defendant IDS. Therefore, DeWitt-Newton is the sole appellee.

This case arose out of a construction project known as the Thunderbird Hilton Inn (hereinafter the Inn). On November 18, 1971, Thunderbird Investment Corporation entered into a construction contract with DeWitt-Newton whereby De[298]*298Witt-Newton as general contractor agreed to build the Inn. Construction began in late November of 1971.

Subsequently, Thunderbird Investment Corporation obtained a mortgage loan from IDS Mortgage Corporation in the initial amount of $4,100,000. That amount was increased to $4,300,000 and the mortgage was recorded on April 11, 1972.

As work progressed, it became apparent that the cost of completing the structure was greater than initially planned. In the spring of 1973, there were unpaid claims amounting to $203,000 for extra work authorized by the general contractor and Thunderbird Investment Corporation, as owner, but which were not included in or provided for by the construction loan with IDS.

In April or May of 1973, Thunderbird Investment Company applied to IDS for an increase in the amount of the mortgage loan to cover these bills. This request was refused. Work began to slow down on the project after May of 1973. The general contractor secured the project for the winter and, for such purposes, IDS authorized three construction draws, the last of which was made on or about September 14, 1973.

In the fall of 1973, DeWitt-Newton contracted with A & A Electrical Services. A & A performed work and provided materials until on or about January 2, 1974, at which time DeWitt-Newton was billed approximately $20,000 for these services. In March of 1974, DeWitt-Newton requested that A & A perform assorted electrical services in the bathrooms and on exit signs and to do general clean-up work on the project. The work was done on March 23, 1974, and DeWitt-Newton was billed $328.

On or about May 23, 1974, DeWitt-Newton [299]*299served Thunderbird Investment Corporation’s resident agent with an intent to claim a lien, a statement of account and lien and a document entitled "unpaid bills on Thunderbird Hilton project, Plymouth, Michigan, subject to lien”. The statement of account and lien was subsequently recorded in the office of the Wayne County Register of Deeds on June 6, 1974.

The Inn property was purchased April 4, 1974, through the foreclosure sale of the IDS Construction mortgage, at a sheriffs sale. The sheriffs deed to IDS was recorded on April 5, 1974, in the office of the Wayne County Register of Deeds.

Following a hearing, Judge John D. O’Hair entered a very thorough and well written opinion in favor of DeWitt-Newton Corporation and the five subcontractors. IDS appeals from two of the trial court’s findings. We first address Judge O’Hair’s finding that DeWitt-Newton substantially complied with the recording and notice requirements of the mechanics’ lien act.

IDS asserts that the trial court’s finding was erroneous on two grounds. First, IDS argues that DeWitt-Newton did not comply with MCL 570.5; MSA 26.2851 and file its statements of account and [300]*300lien within 90 days after furnishing the last labor and materials on the project pursuant to its contract with Thunderbird Investment Corporation. DeWitt-Newton mailed its statement of account and lien on or about May 23, 1974. Since the last work on the project was done on March 23, 1974, by A & A Electrical Company, DeWitt contends that the statement of account and lien was timely filed. IDS does not dispute that A & A performed work on the project on March 23, 1974, but argues that the work was not done in good faith but merely to revive DeWitt’s lien rights. Whether labor and material furnished within the statutory period but after the contract has been substantially completed were furnished in good faith and for the purpose of completing the contract or to revive the lien is a question of fact. Neely v International Corn Products Corp, 232 Mich 81, 86; 205 NW 96 (1925). Sacchetti v Recreation Co, 304 Mich 185, 190; 7 NW2d 265 (1943).

The work done on March 23, 1974, consisted of repair work on the exit lighting and in the second floor bathrooms. This work was done at the request of DeWitt-Newton and was part of A & A’s October, 1973, contract. A & A billed DeWitt-Newton $21,889.05 for work done from October, 1973, to January 2, 1974. The bill for the March 23rd work was $328. Although IDS alleges that the work performed after September, 1973, was for the purpose of sale or to avoid bond liability, this allegation is not supported by the record. Rather it appears the work was done to attract additional financiers for the project. Admittedly, the work on the project was slowing down due to lack of money. However, it appears that the Thunderbird [301]*301Investment Company was seeking new money to bolster the project. A & A’s testimony that the March 23rd work was done under the original contract is uncontroverted. There was no allegation that the work was not done, that it did not benefit the project or that it was done in an unworkmanlike manner. Judge O’Hair concluded that:

"The Court is satisfied that the work done at the project in the latter part of March, 1974, was intended to further the project and the construction contract, and was not simply a device to afford DeWitt-Newton the opportunity to record its statement of account and lien within the time period prescribed by MCLA 570.5. Though the amount of work done at the project was relatively small in comparison to the entire project, it was beneficial and necessary.”

We decline to disturb this conclusion since it was clearly supported by the proofs. Tuttle v Dep’t of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976), Smith v Michigan State Accident Fund, 403 Mich 201, 204; 267 NW2d 909 (1978).

IDS next asserts that DeWitt-Newton’s failure to serve its statement of account and lien upon IDS and to name IDS as an owner on same renders DeWitt-Newton’s lien ineffective in light of MCL 570.5; MSA 26.285,2 and MCL 570.6; MSA 28.286.3 IDS argues that since it purchased the Inn on [302]*302April 4, 1974, at a foreclosure sale and obtained a sheriffs deed, its equitable interest in the property, Gerasimos v Continental Bank; 237 Mich 513, 519-520; 212 NW 71 (1927), Gage v Sanborn, 106 Mich 269; 64 NW 32 (1895), makes it an "owner” within the meaning of the mechanic’s lien act.4 While this argument is persuasive, we do not here determine its merit since resolution of this issue is controlled by the "direct dealing” language of MCL 570.6; MSA 26.286.5 It is undisputed that IDS and DeWitt-Newton were in direct dealings regarding the Thunderbird Inn project.

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Bluebook (online)
293 N.W.2d 801, 97 Mich. App. 295, 1980 Mich. App. LEXIS 2655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-propes-electric-co-v-dewitt-newton-inc-michctapp-1980.