PRESTIGE PAVERS INC V ESTATE HOMES LLC
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STATE OF MICHIGAN
COURT OF APPEALS
PRESTIGE PAVERS, INC.,
UNPUBLISHED
May 20, 2008
Plaintiff/Counter-Defendant,
v
ESTATE HOMES, L.L.C., PALAZZO HOLDING
GROUP, L.L.C., CITIZENS FIRST SAVINGS
BANK, CITIZENS FIRST MORTGAGE, L.L.C.,
and M & M ELECTRIC,
No. 276139
Macomb Circuit Court
LC No. 05-004413 CK
Defendants/Cross-Defendants,
and
RICHARD WEILER and CYNTHIA WEILER,
Defendants/Cross-Plaintiffs/Cross
Defendants-Appellees,
and
CONSUMERS LUMBER COMPANY,
Defendant/Counter-Plaintiff/CrossPlaintiff Appellant.
Before: White, P.J. and Hoekstra and Schuette, JJ.
WHITE, P.J. (dissenting).
I respectfully dissent. I do not agree that the affidavit submitted by the Weilers entitled
them to summary disposition under the circumstances presented. While Consumers Lumber
Company (CLC) might have offered more than legal argument in support of its opposition to the
motion, the affidavit did not conclusively establish that the Weilers already paid Estate Homes
for the materials provided by CLC. The affidavit simply establishes that Cummings represented
that the $43,000 would be used to payoff any other potential lien claimants. I cannot agree that
this simple, general, oral representation insulates the Weilers from the lien as a matter of law.
The statement might be understood to mean that the $43,000 would be used in its entirety, and
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was sufficient, to satisfy and discharge all debts to any lien claimants, but it also could be
understood as a representation that the money would go towards that end, while it might not
satisfy each individual lien. In any event, the Weilers were in a position to demand that
Cummings provide sworn statements showing exactly who was paid, and in what amounts.
Further, the record supports CLC’s assertion at argument on the summary disposition motion that
some of the materials were supplied by CLC after the Weilers made their last payment. The
affidavit is insufficient to establish that the last payment was intended to be a prepayment for
these materials.
I also observe that the circuit court referred to the affidavit’s assertion that when the
Weilers “made the previous $60,000 to Estate Homes, L.L.C., on March 11, 2005, Estate Homes,
L.L.C., had provided [the Weilers] a waiver of lien indicating that all labor and materials
provided through March 10, 2005 were fully paid.” However, a review of the waiver shows that
only “labor” was underlined, not “material.” Further, it is undisputed that the entire contract
price had not been paid. While I agree that Erb Lumber, Inc v Gidley, 234 Mich App 387; 594
NW2d 81 (1999), makes clear that this does not foreclose the Weilers from asserting a defense
under MCL 570.1203, it does mean that prior payment of the improvement cannot be established
by simply showing that the contract price has been paid.
In Erb Lumber, relied on by the Weilers and the majority, the trial court found, after a
trial, that the money paid to the contractor was, in fact, a prepayment of money needed to
purchase materials from Erb Lumber. Here, the question is whether the affidavit, which can be
taken at face value because it was not countered by an opposing factual affidavit, establishes
prior payment as a matter of law. For the reasons stated above, I do not think it does.
I would reverse and remand for further proceedings.
/s/ Helene N. White
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