PROGRESSIVE TIMBERLANDS INC V R&R HEAVY HAULERS INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PROGRESSIVE TIMBERLANDS, INC.,
November 28, 2000
R & R HEAVY HAULERS, INC., and RODNEY
Washtenaw Circuit Court
LC No. 98-010174-PD
January 19, 2001
Before: Meter, P.J., and Griffin and Talbot, JJ.
Plaintiff Progressive Timberlands, Inc., appeals as of right from an order granting
summary disposition to defendants in this carrier's lien case. We reverse and remand.
In September 1998, plaintiff hired defendant R & R Heavy Haulers, Inc., (R & R) to
move three pieces of equipment between two locations where plaintiff was clearing land. R & R
took possession of the items but failed to deliver them as agreed. Plaintiff contended that
defendant Rodney Burrell, an employee and principal of R & R, informed plaintiff that R & R
was retaining the equipment because of outstanding invoices that were overdue for delivery
services previously rendered to plaintiff by R & R.
Plaintiff made a partial payment on the outstanding invoices, after which defendants
returned two pieces of equipment to plaintiff but retained the third piece, a "bunching saw" that
plaintiff claims was essential to the operation of its business.
In November 1998, when
defendants had still not returned the saw, plaintiff sued defendants, alleging conversion and
seeking both the return of the saw and damages for lost use of it. In response, defendants
contended that under MCL 440.7307(1); MSA 19.7307(1), R & R was properly holding the saw
under a carrier's lien for $195, the amount plaintiff owed defendant for transporting the three
pieces of equipment. Defendants denied that Burrell told plaintiff that R & R was retaining the
equipment against plaintiff 's will because of unpaid prior debt. Additionally, defendants alleged
rightful possession of the saw as a result of an agreement with plaintiff that the saw would
remain with R & R until the resolution of ongoing negotiations regarding the remaining unpaid
The trial court ruled that defendants possessed a valid lien on the equipment for $195 and
ordered the return of the saw to plaintiff upon payment by plaintiff of the $195. Subsequently,
during the hearing on defendants' motion for summary disposition, the trial court dismissed
plaintiff 's complaint, indicating that because defendants had held a valid lien on the property, no
Plaintiff contends that the trial court erred in granting defendants' motion for summary
disposition because factual issues remained in dispute concerning whether defendants lawfully
retained plaintiff 's equipment. We agree. We review de novo a trial court's decision to grant
summary disposition. Ins Comm'r v Aageson Thibo Agency, 226 Mich App 336, 340; 573 NW2d
637 (1997). Here, although the trial court did not specify on which subsection of MCR 2.116(C)
it relied in granting defendants' motion for summary disposition, it appears that its ruling was
based on MCR 2.116(C)(10)—plaintiff 's failure to establish a genuine issue of material fact.
When reviewing a motion granted under MCR 2.116(C)(10), we must examine all relevant
documentary evidence in the light most favorable to the nonmoving party and determine whether
there exists a genuine issue of material fact on which reasonable minds could differ. Nesbitt v
American Community Mut Ins Co, 236 Mich App 215, 219-220; 600 NW2d 427 (1999). The
nonmoving party may not rest on its pleadings but must demonstrate a factual issue using
documentary evidence. MCR 2.116(G)(4); see also Smith v Globe Life Ins Co, 460 Mich 446,
455; 597 NW2d 28 (1999).
Under MCL 440.7307(1); MSA 19.7307(1), part of Michigan's version of the Uniform
Commercial Code, a carrier's lien for transportation and storage charges is inherent in any
agreement to ship goods under a bill of lading:
A carrier has a lien on the goods covered by a bill of lading for charges
subsequent to the date of its receipt of the goods for storage or transportation
(including demurrage and terminal charges) and for expenses necessary for
preservation of the goods incident to their transportation or reasonably incurred in
their sale pursuant to law.
The lien created against such goods under this section is lost at such time as the carrier
"voluntarily delivers" or "unjustifiably refuses to deliver" such goods. MCL 440.7307(3); MSA
As previously noted, plaintiff alleged below, through sworn affidavits, that at the time of
their initial refusal to deliver the saw, defendants did not indicate that they were asserting a
statutory lien for the $195 due on the most recent transport of the saw, but rather demanded full
payment of all past invoices as the sole condition for the release of the items. While there
appears to be no Michigan authority directly addressing the issue, other jurisdictions interpreting
statutes similar to MCL 440.7307; MSA 19.7307 have held that there can be no lien on presently
transported goods for prior debt and that any such assertion constitutes an unjustifiable refusal to
deliver the goods and essentially waives the statutory lien on presently held goods.
In Car Transportation v Garden Spot Distributors, 305 Ark 82, 84; 805 SW2d 632
(1991), the defendant trucking company agreed to transport food products from California to the
East Coast. During the transport of these goods, the truck broke down in Arkansas, where the
carrier discovered that the sellers of the goods owed it more than $9,000 for previous trucking
services. Id. As a result, the carrier demanded payment of $15,000 with which to repair the
truck and complete delivery. Id. Upon the sellers' refusal to pay this amount, the carrier refused
to deliver the goods and placed them in storage in Arkansas. Id. The goods' buyers, who had
paid the sellers in advance, demanded the goods from the carrier but were refused.
Thereafter, the buyers brought suit against the carrier for conversion and were subsequently
awarded damages. Id.
On appeal, the carrier argued that it could not be held liable for
conversion because, pursuant to a statute identical to MCL 440.7307(1); MSA 19.7307(1), it
legitimately had the right to assert a lien against the goods shipped for a debt due from the sellers
for past services. Car Transportation, supra at 86.
In addressing this argument, the Arkansas Supreme Court held that the carrier had no lien
on the goods under the proffered statute because "a lien on presently transported goods for a prior
debt is not contemplated under the Uniform Commercial Code." Id. Thus, the court reasoned,
"[i]f a lien defense is available to the motor carrier, it can only be asserted against currently
transported goods for freight charges that remain unpaid." Id. See also Miller v Economics
Laboratory, Inc, 410 So 2d 642 (Fla App, 1982) (holding that no carrier's lien existed under the
state UCC for past due charges).
In McQuillan v Mercedes-Benz Credit Corp, 331 Ark 242, 248; 961 SW2d 729 (1998),
the carrier withheld delivery of certain items until the plaintiff paid both all unpaid past debt and
current transportation charges. The appeals court ruled that even if a statutory lien existed for
current transportation charges (under a statute materially identical to MCL 440.7307; MSA
19.7307), the carrier could nonetheless be held liable for conversion if it attempted to secure
payment of unpaid past debt, in addition to current transportation charges, by withholding
delivery of the goods. McQuillan, supra at 248-252.
These cases indicate that (1) statutes analogous to MCL 440.7307(1); MSA 19.7307(1)
do not create a carrier's lien for past due charges; and (2) if a carrier attempts to assert a carrier's
lien for past due charges, it may be held liable for conversion even if it also asserts a lien for
present transportation charges. We agree with these holdings and hereby incorporate them into
Here, the evidence conflicted regarding whether defendants retained plaintiff 's saw in an
attempt to secure the payment of unpaid prior debt. Plaintiff contended that defendants did
indeed do so, whereas defendants contended that they sought merely to enforce a lien for the
current charges. Accordingly, there existed a genuine issue of material fact regarding whether
defendants were liable for conversion.
We note that in addition to asserting a valid carrier's lien under MCL 440.7307(1); MSA
19.7307(1), defendants alternatively contended that they were holding the saw pursuant to an
agreement between the parties that the saw would serve as security for payment on the remainder
of plaintiff 's unpaid invoices.
While there is no statutory impediment to the creation or
enforcement of such an agreement, see MCL 440.1102(3); MSA 19.1102(3), plaintiff denied that
such an agreement was ever made, thereby creating an additional fact question concerning
defendants' right to retain the disputed goods and thus precluding summary disposition under
Next, plaintiff argues that a question of fact existed concerning the appropriate
disposition of its partial payment to R & R of $4,775 and that the granting of summary
disposition was therefore improper. More specifically, plaintiff argues that whether a portion of
this payment should have been applied to any carrier's lien defendants may have possessed for
current transportation charges was a question of fact to be determined at trial. We disagree.
Plaintiff failed to offer any documentary evidence to establish that any portion of the $4,775
payment was intended to apply to a lien for current transportation charges. In fact, in its motion
for reconsideration filed shortly after entry of the trial court's order to release the saw upon
payment of $195, plaintiff alleged through a sworn affidavit that the $4,775 payment was
tendered to satisfy preexisting debt. Therefore, inasmuch as a party may not create issues of fact
through contradiction of that party's prior sworn statements, we reject plaintiff 's contention in
this regard. See, e.g., Schultz v Auto-Owners Ins Co, 212 Mich App 199, 202; 536 NW2d 784
Next, plaintiff argues that R & R failed to issue a bill of lading until after it had retained
the saw for several weeks and that the granting of summary disposition was therefore improper.
Plaintiff argues that R & R's failure to issue a bill precluded the existence of a valid statutory lien
purportedly justifying the retention of the saw under MCL 440.7307(1); MSA 19.7307(1), which
indicates that "[a] carrier has a lien on the goods covered by a bill of lading for charges incurred
subsequent to the date of its receipt of the goods . . . ." This issue was not raised below and thus
is not properly before this Court. Accordingly, we decline to review it. Executone Business
Systems Corp v IPC Communications, Inc, 177 Mich App 660, 671; 442 NW2d 755 (1989).
Even if we were to review this issue, we would find no merit in plaintiff 's argument. MSA
440.7307(1); MSA 19.7307(1) provides that a carrier will have a lien on goods "covered by a bill
of lading" and does not provide a time frame for the issuance of the bill. Moreover, MCL
440.1201(6); MSA 19.1201(6) defines a "bill of lading" simply as a "document evidencing
receipt of goods for shipment issued by a person engaged in the business of transporting or
forwarding goods." Here, defendants submitted to the trial court an invoice for the current
transportation charges that purported to have been prepared on either the day of shipping or the
day after, and plaintiff offers no authority to support its contention that because the invoice was
not presented to it until after defendants' receipt and retention of the goods, no lien under MCL
440.1201(6); MSA 19.1201(6) was possible.
Given our decision to reverse the trial court's grant of summary disposition to defendants,
we need not address plaintiff 's final, unpreserved argument that the trial court prematurely
granted summary disposition before the close of discovery.
Reversed and remanded for further proceedings consistent with this opinion. We do not
/s/ Patrick M. Meter
/s/ Richard Allen Griffin
/s/ Michael J. Talbot