PEN INC V PETER O'DOVERO
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STATE OF MICHIGAN
COURT OF APPEALS
PEN, INC.,
UNPUBLISHED
June 5, 2001
Plaintiff-Appellee/Cross-Appellant,
v
No. 225513
Marquette Circuit Court
LC No. 97-033810-CK
PETER O’DOVERO, d/b/a ASSOCIATED
CONTRACTORS,
Defendant-Appellant/CrossAppellee.
Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ.
PER CURIAM.
This case arises out of a construction contract. Plaintiff filed a claim for breach of
contract and slander of title. Defendant filed a counterclaim for enforcement of his construction
lien. Following a bench trial, the circuit court issued an opinion on November 22, 1999, and
amended the opinion by its final judgment on February 10, 2000. Defendant now appeals as of
right from the circuit court judgment awarding him $138,208.37 less $15,000 attorney fees and
less interest on his $235,019.47 damage claim. Plaintiff Pen Inc. has filed a cross-appeal on
issues involving damages and attorney fees. We affirm in part and reverse and remand in part.
First, defendant argues that the trial court erred in finding slander of title in this case. We
agree. The elements of slander of title are falsity of statement and malice. Stanton v Dachille,
186 Mich App 247, 262; 463 NW2d 479 (1990). See also Bonner v Chicago Title Ins Co, 194
Mich App 462, 469; 487 NW2d 807 (1992).1 Malice may not be inferred from the filing of an
invalid lien. The plaintiff must show that the defendant knowingly filed an invalid lien with the
intent to cause the plaintiff injury. Stanton, supra. A lien is not invalid merely because it is filed
for an excessive amount; the lien is lost only where bad faith is evident. If the error in the
amount was due to a good faith mistake, the appropriate remedy is simply to reduce the amount
of the lien. Tempo, Inc v Rapid Electric, 132 Mich App 93, 104; 347 NW2d 728 (1984). Bad
1
It may also be necessary for a plaintiff to show special damages, but that is not an issue in this
case. B & B Investment v Gitler, 229 Mich App 1, 8; 581 NW2d 17 (1998).
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faith is evident where the lien included amounts for labor not actually performed and materials
not in fact furnished. Id.
In this case, the trial court implicitly found that defendant’s lien was valid when it
ordered plaintiff to pay part of the lien amount. Although the trial court rejected some of
defendant’s claimed costs, there is no evidence that defendant charged for work not done or
materials not furnished. Id. Because the record does not support a finding that defendant filed an
invalid lien, the finding of slander of title was not appropriate. Stanton, supra.
We also reverse the trial court’s award to plaintiff of attorney fees. Absent a statute or
court rule authorizing the award of attorney fees, each side is responsible for his own attorney
fees. Radenbaugh v Farm Bureau, 240 Mich App 134, 152; 610 NW2d 272 (2000). Although
attorney fees may be recoverable when there is slander of title, MCL 565.108; MSA 26.1278; B
& B Investment v Gitler, 229 Mich App 1; 581 NW2d 17 (1998), we have already found that
there was no slander of title here. Plaintiff was not a successful lien claimant and there is no
basis for finding that defendant’s action, which was successful in part, was vexatious. MCL
570.1118(2); MSA 26.316(118)(2); Vugterveen Systems v Olde Millpond, 454 Mich 119, 133;
560 NW2d 43 (1997).
Next, defendant argues that the trial court erred in the method it used to calculate
damages. The clearly erroneous standard of review applies to a damage award rendered in a
bench trial. Scott v Allen Bradley Co, 139 Mich App 665, 672; 362 NW2d 734 (1984). The trial
court’s findings of fact are also reviewed for clear error. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire record is left with a
definite and firm conviction that a mistake has been committed. Christiansen v Gerrish Twp,
239 Mich App 380, 387; 608 NW2d 83 (2000). Here, evidence was presented as to a variety of
different ways to calculate the amount of dirt moved in the construction project. We find no
clear error in the trial court’s decision.
Defendant also argues that the trial court erred in not awarding interest to defendant. We
agree. The judgment interest statute, MCL 600.6013(1); MSA 27A.6013(1), specifically
provides that “interest shall be allowed on a money judgment recovered in a civil action.” The
purpose of the statute is to compensate the prevailing party for the loss of use of the funds
awarded as a money judgment and for the costs of litigation. The provision is remedial in nature
and so must be liberally construed. In re Forfeiture of $176,598, 242 Mich App 342, 347; 618
NW2d 922 (2000). The imposition of statutory interest pursuant to MCL 600.6013; MSA
27A.6013 is mandatory and interest must be paid from the date the complaint was filed.
Hadfield v Oakland Co Drain, 218 Mich App 351, 357; 554 NW2d 43 (1996). Statutory interest
accrues until the judgment is satisfied. Id. We therefore remand for the limited purpose of
correcting the judgment to reflect the addition of statutory interest.
Next, defendant argues that the trial court erred in failing to award him attorney fees.
There is no merit to this issue. An award of attorney fees to a lien claimant who is the prevailing
party under the Construction Lien Act is discretionary. MCL 570.1118(2); MSA 26.316(118)(2).
Here, the trial court made it clear that it did not consider either party to be the prevailing party.
Attorney fees are not mandatory under the statute and, on these facts, we find no abuse of
discretion. Vugterveen Systems, supra at 133.
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Plaintiff contends by cross appeal that, if this case is remanded “for a new trial or for
factual findings,” the trial court should be ordered to explain why it did not allow plaintiff
recovery for “chargebacks.” Plaintiff also argues that the trial court should be instructed to
consider the reasonableness of plaintiff’s claimed attorney fees if this matter is remanded for
further factual determinations. Plaintiff cites no authority for either argument. A party may not
leave it to this Court to search for authority to sustain or reject its position. Staff v Johnson, 242
Mich App 521, 529; 619 NW2d 57 (2000).
Finally, plaintiff argues that it is entitled to appellate attorney fees on the basis of the
slander of title statute. In light of our decision that the trial court erred in finding slander of title
in this case, this issue need not be addressed.
The trial court’s finding of slander of title and the attorney fee award to plaintiff on that
basis is reversed. This matter is remanded for the limited purpose of correcting the judgment to
reflect defendant’s award of statutory interest. In all other respects, the trial court’s decision is
affirmed. We do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Michael R. Smolenski
/s/ William C. Whitbeck
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