WOODWORK SPECIALTIES CO V DUTCHMAN REMODELING INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
WOODWORK SPECIALTIES CO.,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 186190
Kalamazoo Circuit Court
LC No. 93-1292-CH
KAREN SUE SAXTON,
Defendant-Appellee,
and
HOMEOWNERS CONSTRUCTION
LIEN RECOVERY FUND,
Defendant-Appellant,
and
DUTCHMAN REMODELING, INC.,
NATIONAL LOAN SERVICE CENTER,
STANDARD FEDERAL BANK, and FIRST
OF AMERICA BANK, MICHIGAN, N.A.
Defendants.
Before: Fitzgerald, P.J., and O’Connell and T.L. Ludington*, JJ.
FITZGERALD, P.J. (dissenting.)
I respectfully dissent from the majority’s sua sponte decision to address issues that were raised
neither before the trial court nor before this Court. Indeed, a review of the transcript from the hearing
below reveals that perfection of the lien was not a disputed issue, and there is no indication that the
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
parties dispute whether plaintiff complied with the requirements of the Homeowner Construction Lien
Recovery Fund. The sole issue presented for our consideration is whether the trial court erred when it
awarded plaintiff $1,350 in damages that the fund contends are consequential damages for the wrongful
acts and omissions of the general contractor that are not recoverable under the construction lien act.1
The construction lien act provides in part:
(1) A claim of construction lien shall not attach to a residential structure, to the extent
payments have been made, if the owner or lessee files an affidavit with the court
indicating that the owner or lessee has done all of the following:
(a) Paid the contractor for the improvement to the residential structure and the
amount of the payment.
(b) Not colluded with any person to obtain a payment from the fund.
(c) Cooperated and will continue to cooperate with the department in the
defense of the fund. [MCL 570.1203; MSA 26.316(203).]
Defendant Saxton filed such an affidavit with the trial court in which she averred that she “paid
to Dutchman Remodeling, Inc. all sums owed for the improvement of the residential structure for
material furnished by Woodwork Specialties,” that she did not collude with anyone to obtain payment
from the fund, and that she would cooperate in the defense of the fund. Citing Brown Plumbing &
Heating, Inc v Homeowner Construction Lien Recovery Fund, 190 Mich App 709, 713; 476
NW2d 657 (1991), rev’d on other grounds 442 Mich 179; 500 NW2d 733 (1993), the trial court
granted judgment in favor of plaintiff and against the fund, as opposed to Saxton, on the basis that
Saxton had filed the affidavit called for under § 203 of the construction lien act and in recognition that
the act is designed to protect owners like Saxton from having to pay twice for the same work and
materials. See also Marinich, Inc v Mich Nat’l Bank, 193 Mich App 447, 453; 484 NW2d 738
(1992).
The trial court’s judgment serves the purpose of protecting an owner like Saxton from double
payment. There is no dispute that Saxton paid for the supplies and materials that plaintiff delivered. The
contract between Dutchman and Saxton specified a total price for labor and material of $14,300.
While it is true that ultimately Saxton paid only $12,300, this figure included payment for the materials
plaintiff delivered.2
Because the $2,000 that Saxton withheld was strictly for unfinished labor and for materials not
supplied by plaintiff, it is clear that Dutchman should have paid plaintiff for the materials that plaintiff
delivered out of the $12,300 that Saxton paid. The fund admitted as much at trial. 3 Accordingly,
because Saxton paid Dutchman for all the materials that plaintiff delivered, I would conclude that the
trial court properly awarded plaintiff recovery against the fund. Marinich, supra at 453.
II
-2
The fund makes the technical argument that Saxton did not “pay for the improvement.”
Essentially, the fund’s argument is that the test under the act is not whether Saxton paid for the materials
that plaintiff delivered, but whether she paid for the improvement. MCL 570.1203(1)(a); MSA
26.316(203)(1)(a). The fund notes that the act defines “improvement” as “the result of labor or
material provided by a contractor, subcontractor, supplier, or laborer . . . pursuant to a contract,” MCL
570.1104(7); MSA 26.316(104)(7), and the contract here was for $14,300, of which Saxton paid only
$12,300. Therefore, the fund argues, Saxton did not pay for the improvement. Instead she retained the
$2,000, $1,350 of which was on the basis that Dutchman’s work was unsatisfactory, implying that while
the fund is a guarantor of payment for work completed, it is not a guarantor of the quality of that work.
A review of the fund’s argument at trial is beneficial in understanding its position. At trial the
fund argued as follows:
The act does not refer to individual suppliers or material people, it refers to the
improvement, which is the result. If you look at the definitions. The result of what has
been done. This lady [Saxton] was $650 and change short of getting what she was
entitled to, as far as physical improvement to her property.
* * *
I think the point is, is that she promised to pay fourteen three. He [Dutchman]
promised to do certain things. The testimony is he did everything, although not well, but
complete the chimney, which was a $650 estimate to finish it.
* * *
And clean[]up some stuff. So that was the improvement that they contracted
for.
* * *
[I]t is the position of the Fund that our exposure is the difference between what
she promised to pay Dutchman, and what she actually paid Dutchman less any credits
for work that Dutchman did not complete. And as far as I know, that’s [$]650 plus
clean[-]up. . . .
[T]he homeowner [Saxton] said the only thing they [she] didn’t pay for, or the
only thing that wasn’t done at the time that Dutchman walked off is finishing the chimney
and doing some clean[-]up.
So clearly, that had yet to be done, that part of the improvement that was not
completed, and they [Saxton] should get credited for that against the $2,000 because,
but for that, they would have had the job done.
-3
....[N]ot done well, but it was done.
The fund’s argument is not supported by the terms of the act. The fund’s argument hinges on
the notion that, in answering the question whether Saxton paid for the improvement, “improvement” is
equivalent to the full contract price. The complete definition of “improvement” contained in the act is as
follows:
“Improvement” means the result of labor or material provided by a contractor,
subcontractor, supplier, or laborer, including, but not limited to, surveying, engineering,
and architectural planning, construction management, clearing, demolishing, excavating,
filling, building, erecting, constructing, altering, repairing, ornamenting, landscaping,
paving, leasing equipment, or installing or affixing a fixture or material, pursuant to a
contract. [MCL 570.1104(7); MSA 26.316(104)(7).]
The cardinal rule of statutory construction is to determine and effectuate the Legislature’s intent.
Marinich, supra, 193 Mich App 452. The Legislature expressly declared the act to be a remedial
statute that shall be liberally construed to secure the beneficial results, intents, and purposes of the act.
MCL 570.1302(1); MSA 26.316(302)(1). If reasonable minds can differ regarding the meaning of a
statute, judicial construction is appropriate; however, where the plain language of the statute is clear,
judicial construction is neither necessary nor permissible. Heinz v Chicago Rd Investment Co, 216
Mich App 289, 295; 549 NW2d 47 (1996). Unless defined in the statute, words are to be accorded
their plain and ordinary meaning; technical terms which are defined are to be regarded according to
those definitions. People v Lee, 447 Mich 552, 557-558; 526 NW2d 882 (1994).
Nothing in the act’s definition of improvement equates “improvement” with price. The thrust of
the definition is to indicate the breadth of the services and materials that can constitute an improvement.
Marinich, supra at 456-457. Despite the absence of any reference to price in the act’s definition of the
term “improvement,” the fund suggests a connection between “improvement” and the contract price,
claiming,
The term “improvement” . . . as used in the act can only reasonably be
construed to include the value of materials supplied by a lien claimant as measured by
the contract price . . . . [I]t is the value of the materials which comprise the
improvement which is the proper measure of the monetary value of the lien and not the
price which either the homeowner or the builder place on the improvement.
The fund’s support for its argument is Erb Lumber Co v Homeowner Construction Lien Recovery
Fund, 206 Mich App 716; 522 NW2d 917 (1994). However, a panel of this Court in Erb stated that
the term “improvement” “does not fix or define the extent of [a] lien,” but serves only to identify those
individuals who can claim a lien; it “is not helpful in determining which sums can properly be included in
a construction lien.” Id. at 720.
The fund cites no cases analogous to the present one where any panel of this Court held that a
homeowner like Saxton had not “paid for the improvement” because he or she did not tender the
-4
original, full contract price. In fact, quite the contrary is indicated by the language of the act itself.
Specifically, the act defines the term “contract” to include “any and all additions to, deletions from, and
amendments to the contract.” MCL 570.1103(4); MSA 26.316(103)(4). See Marinich, supra at
457.
Finally, the fund’s argument fails on the ground that Saxton, in fact, paid Dutchman the original,
full contract price of $14,300. According to Saxton, she offered the final $2,000 draw to Dutchman,
but Dutchman refused it. Dutchman chose instead to terminate work on the project.
In sum, because Saxton paid Dutchman for all the materials that plaintiff delivered, through
Saxton’s payment of $12,300 to Dutchman, I would hold that the trial court properly awarded plaintiff
recovery against the fund and would affirm.
/s/ E. Thomas Fitzgerald
1
I assume, for purposes of this decision, that the lien was properly perfected. The majority states that if
the lien was properly perfected, the “particular facts of this case may not have arisen and, therefore,
there would be no reason to address the legal issue presented on appeal.” However, the majority fails
to explain its rationale for this statement.
2
This is known deductively because the $2,000 which Dutchman essentially refunded to Saxton was
expressly for labor and not for any materials, with the exception of two pieces of material which Saxton
paid for separately from, and in addition to, the original contract price.
3
THE COURT: When all his [plaintiff’s] lumber was in there, he should
have been paid out of that, that [$]12,300.
FUND’S COUNSEL: I believe that.
* * *
THE COURT: But she [Saxton] has paid for all of the improvements that
Woodwork Specialties has got anything to do with.
FUND’S COUNSEL: Uh-huh.
* * *
THE COURT: And Christianson [Dutchman], that Christianson was “paid in
full” for -- at the time, for all the terms that the Woodworking Specialties put in there.
...[T]his follow-up stuff with other, with other people is irrelevant to his work. To his
material. It was all in there. He [plaintiff] should have been paid for it out of the
[$]12,300.
-5
FUND’S COUNSEL: Well, I think it is probably a fair statement
-6
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
