Artman v. College Heights Mobile Park, Inc., Docket No. 6192

• Decision Date: 25 November 1969
• Docket Number: No. 1,Docket No. 6192,1
• Citation: 173 N.W.2d 833,20 Mich.App. 193
• Parties: Michael ARTMAN, d/b/a Product Engineering Company, Plaintiff- Appellant, v. COLLEGE HEIGHTS MOBILE PARK, INC., a Michigan corporation, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 833

173 N.W.2d 833

20 Mich.App. 193

Michael ARTMAN, d/b/a Product Engineering Company, Plaintiff- Appellant, v. COLLEGE HEIGHTS MOBILE PARK, INC., a Michigan corporation,

Defendant-Appellee.

Docket No. 6192.

Court of Appeals of Michigan, Division No. 1.

Nov. 25, 1969.

Released for Publication Feb. 9, 1970.

Lawrence Halpern, Hyman, Gurwin, Nachman & Friedman, Detroit, for plaintiff-appellant.

Karl R. Bennett, Jr., Southfield, for defendant-appellee.

Before FITZGERALD, P.J., and V. J. BRENNAN and McGREGOR, JJ.

McGREGOR, Judge.

Plaintiff-appellant is an asphalt paving contractor who, in 1965, contracted with defendant, a mobile home park developer, to pave defendant's proposed trailer park. Plaintiff instituted suit in the Wayne county circuit court in 1967, alleging that defendant had failed to pay plaintiff approximately $3,700. Defendant counterclaimed for breach of contract, claiming damages of $6,000. Defendant also filed a motion for summary judgment, pursuant to GCR 1963, 117.2, contending the plaintiff was not licensed by the state, as is required by the Residential Builders Act (RBA). M.C.L.A. § 338.1501 et seq. (Stat.Ann.1968 Cum.Supp. § 18.86(101) et seq.). Plaintiff admitted that he was not licensed, but claimed that he is not required to be. The motion for summary judgment was granted by the trial judge without acting on defendant's counterclaim for $6,000 damages. Plaintiff raises several issues on appeal, which will be dealt with seriatim.

It is plaintiff's basic contention that he, as an asphalt paving company, working on a trailer park, is not subject to the Residential Builder's Act. He alleges that he does not come within the purview of the act for several reasons. Plaintiff argues that he is regulated by the Michigan Trailer Coach Park Act (M.C.L.A. § 125.1001 et seq. (Stat.Ann.1961 Rev. and 1969 Cum.Supp. § 5.278(31) et seq.)), which pre-empts the RBA. Plaintiff states that under this act. Although not controlling, to take over the entire field of regulation and supervision of trailer parks. He cites as support Richards v. City of Pontiac (1943), 305 Mich. 666, 9 N.W.2d 885; Moorman v. State Health Commissioner (1966), 2 Mich.App. 446, 140 N.W.2d 554; and Gust. v. Township of Canton (1963), 337 Mich. 137, 59 N.W.2d 122. The plaintiff did not raise this issue in the lower court. This Court will not review the matter, unless a miscarriage of justice is apparent. Snider v. Dunn (1968), 11 Mich.App. 39, 160 N.W.2d 619. Assuming, however, that this issue were raised, plaintiff incorrectly asserts that the Trailer Park Act and the RBA are inconsistent. It is obvious that the Trailer Park Act deals with the physical requirements of a trailer park, which must be met by a trailer park developer. The RBA deals with the qualifications of residential builders and residential maintenance or alteration contractors, regardless of whether they are developers. The Court concludes that, whenever two statutes may be reconciled, both must stand. Valentine v. Redford Township Supervisor (1963), 371 Mich. 138, 123 N.W.2d 227.

It is appellant's second assertion that the RBA does not require the licensing of asphalt pavers working on a trailer park site. He contends that the definitional sections ¹ of that act do not mention trailers, trailer parks, or asphalt pavers of trailer parks, and that, since the legislature did not specifically enumerate trailer parks or asphalt pavers, the legislative intent was to exclude them from the scope of that act.

An examination of the act reveals that one is considered a 'residential maintenance or alteration contractor' if one is involved in the 'laying of concrete on residential property.' Although the facts show that plaintiff was laying asphalt and not concrete, it is obvious that asphalt may be used instead of or in addition to concrete. The rights of consumers will not be allowed to revolve around the mere fortuitous use of the word 'asphalt' as opposed to 'concrete.' The Court notes the impropriety which would result from protecting the homeowner from concree layers but not from asphalt pavers, performing the same function.

Plaintiff also asserts that a trailer park or a trailer home should not be considered 'residential property.' If we were to accept this argument, this Court would be diametrically opposed to the avowed purpose of the statute, which is to protect the homeowner-consumer. Tracer v. Bushre (1968), 381 Mich. 282, 160 N.W.2d 898. A trailer home is no less a home because it is mobile; it is as much a home or residence as one which is stationary.

'Modern trailer parks afford modern living accommodations for many of the families in America today, and should not be classified other than dwellings or residences.' Land v. City of Grandville (1966), 2 Mich.App. 681, 696, 697, 141 N.W.2d 370, 377.

In addition, the Commission* which administers this act specifically requires the licensing of asphalt paving contractors under this Act. Although not controlling, this is extremely persuasive.

'The construction given to a statute by those charged with the duty of executing it is always entitled to the most respectful consideration and ought not be overruled without cogent reasons.' Margreta v. Ambassador Steel Co. (1968), 380 Mich. 513 514, 158 N.W.2d 473.

This Court concludes that plaintiff is includable as a residential maintenance and alteration contractor, involved in 'laying of concrete on residential property.' Assuming, however, that plaintiff were not properly within the above provision, he also is includable as a residential maintenance or alteration contractor, by means either of 'performing the alteration or any addition to * * * improvement of * * * a residential structure * * *.' Plantiff raises the argument to support his exclusion from the Residential Builder's Act that the occupation or trade must be performed on or appurtenant to a 'structure.' Plaintiff argues that the statutory definitions, 'residential builder' and 'residential maintenance or alteration contractor' both refer to a party who is working on a 'residential structure or combination of residential and commercial structure * * *.' He reasons that, since he did not work on a 'structure' but only on land on which there were no structures, he is not properly includable within the statute. The Court's examination of M.C.L.A. §§ 338.1501--338.1504, indicates that the work need not necessarily be performed on a 'structure....