ALLIED MECHANICAL SERVICES INC V DR&W ENGINEERING AND DESIGN INC
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STATE OF MICHIGAN
COURT OF APPEALS
ALLIED MECHANICAL SERVICES, INC.,
UNPUBLISHED
March 22, 2007
Plaintiff-Appellee,
v
DR&W ENGINEERING & DESIGN, INC., d/b/a
DR&W ENGINEERING & DESIGN, STEVEN
D. RADEMAKER, CHARLES A. WAHL, and
TIMOTHY B. DALY,
No. 266165
Ottawa Circuit Court
LC No. 03-047725-CK
Defendants-Appellants.
Before: O’Connell, P.J., and Murray and Davis, JJ.
MURRAY, J. (concurring).
I concur in the lead opinion’s affirmance of the judgment entered on behalf of plaintiff
after a bench trial. However, I write separately on the issue of the individual defendant’s liability
under the Builder’s Trust Fund Act, MCL 570.151 et. seq. In my view, the act does not provide
a cause of action against an individual, or for that matter, any private cause of action, but because
precedent holds that it does, I must concur in the conclusion that the individual defendants are
subject to liability under the act.
As we noted in DiPonio Co v Rosati Co, 246 Mich App 43, 48; 631 NW2d 59 (2001), the
“Builders’ [T]rust [F]und [A]ct is a penal statute that does not expressly provide a civil cause of
action. However, our Supreme Court has long recognized a civil cause of action for violation of
the provisions of the act,” citing BF Farnell Co v Monahan, 377 Mich 552, 555; 141 NW2d 58
(1966), In re Certified Question, 411 Mich 727, 732; 311 NW2d 731 (1981) and National Bank
of Detroit v Eames and Brown, 396 Mich 611, 620-621; 242 NW2d 412 (1976). Nevertheless,
there is no language within any of the three sections of this act that provides a civil cause of
action for violation of the act. Thus, because the act does not expressly create a private cause of
action, “the claim is precluded if the [Act] provides an adequate means of enforcing its
provisions.” Lowell R Fisher v WA Foote Memorial Hosp, 261 Mich App 727, 730; 683 NW2d
248 (2004), lv granted 471 Mich 957; 691 NW2d 453, vacated and leave denied, 473 Mich 888;
703 NW2d 434 (2005). Here, the act provides a remedy for when a contractor violates the act.
Specifically, section 2 provides that a violation of the act results in a felony which is punishable
by a fine of not less than $100 nor more than $5,000 and/or imprisonment from six months to
three years. When a statute contains criminal penalties for violations of its provisions, it is an
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adequate means of enforcement of its provisions. Lane v KinderCare Learning Centers, Inc, 231
Mich App 689, 695-696; 588 NW2d 715 (1998).
In my view, if we were writing on a clean slate, I would hold that the individual
defendants are not liable as a matter of law because plaintiffs would not have a private cause of
action against them. However, as noted by the DiPonio Construction Co. Court, we are not
writing on a clean slate. I therefore concur in the affirmance of the trial court’s decision.
/s/ Christopher M. Murray
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