Cliffs Forest Products Co. v. Al Disdero Lumber Co.

• Decision Date: 30 October 1985
• Docket Number: 77006,76964,Docket Nos. 76627
• Parties: CLIFFS FOREST PRODUCTS COMPANY, a Michigan corporation, Plaintiff-Nonparticipant, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant, Third-Party Plaintiff, Nonparticipant, and O'Dovero Construction Company, a Michigan corporation, Defendant-Appellant, and Wright & Barker, Ltd., a professional corporation, Defendant-Nonparticipant, and Rosboro Lumber Company, an Oregon corporation, Third-Party Defendant, Cross-Plaintiff, Nonparticipant, and Dick W. Ebeling, Inc., an Oregon corporation, Third-Party Defendant, Cross-Defendant, Appellee, and Salmi Delores, Intervening-Plaintiff, Nonparticipant. CLIFFS FOREST PRODUCTS, a Michigan corporation, Plaintiff-Nonparticipant, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant, Third-Party Plaintiff, and O'Dovero Construction Company, a Michigan corporation, and Wright & Barker, Ltd, a professional corporation, Defendants, and Rosboro Lumber Company, an Oregon corporation, Third-Party Defendant, Cross-Plaintiff, Appellant, and Dick W. Ebeling, Inc., an Oregon corporation, Third-Party Defendant, Cross-Defendant, Appellee. CLIFFS FOREST PRODUCTS COMPANY, a Michigan corporation, Plaintiff, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant, Third-Party Plaintiff, Appellant, and O'Dovero Construction Company, A Michigan corporation; and Wright & Barker, Ltd, a professional corporation, Defendants, and Rosboro Lumber Company, an Oregon corporation, Third-Party Defendant, Cross-Plaintiff, Dick W. Ebeling, Inc., an Oregon corporation, Third-Party Defendant, Cross-Defendant, Appellee. 144 Mich.App. 215, 375 N.W.2d 397
• Court: Court of Appeal of Michigan — District of US

Page 397

375 N.W.2d 397

CLIFFS FOREST PRODUCTS COMPANY, a Michigan corporation, Plaintiff-Nonparticipant, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant,

Third-Party Plaintiff, Nonparticipant,

and

O'Dovero Construction Company, a Michigan corporation,

Defendant-Appellant,

and

Wright & Barker, Ltd., a professional corporation,

Defendant-Nonparticipant,

and

Rosboro Lumber Company, an Oregon corporation, Third-Party

Defendant, Cross-Plaintiff, Nonparticipant,

and

Dick W. Ebeling, Inc., an Oregon corporation, Third-Party

Defendant, Cross-Defendant, Appellee,

and

Salmi Delores, Intervening-Plaintiff, Nonparticipant.

CLIFFS FOREST PRODUCTS, a Michigan corporation, Plaintiff-Nonparticipant, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant, Third-Party Plaintiff, and O'Dovero Construction Company, a Michigan corporation, and

Wright & Barker, Ltd, a professional corporation,

Defendants,

and

Rosboro Lumber Company, an Oregon corporation, Third-Party

Defendant, Cross-Plaintiff, Appellant,

and

Dick W. Ebeling, Inc., an Oregon corporation, Third-Party

Defendant, Cross-Defendant, Appellee.

CLIFFS FOREST PRODUCTS COMPANY, a Michigan corporation, Plaintiff, v. AL DISDERO LUMBER COMPANY, a foreign corporation, Defendant, Third-Party Plaintiff, Appellant, and O'Dovero Construction Company, A Michigan corporation; and

Wright & Barker, Ltd, a professional corporation,

Defendants,

and

Rosboro Lumber Company, an Oregon corporation, Third-Party

Defendant, Cross-Plaintiff,

Dick W. Ebeling, Inc., an Oregon corporation, Third-Party

Defendant, Cross-Defendant, Appellee.

Docket Nos. 76627, 76964, 77006.

144 Mich.App. 215, 375 N.W.2d 397

Court of Appeals of Michigan.

Submitted May 22, 1985.

Decided July 15, 1985.

Released for Publication Oct. 30, 1985.

[144 MICHAPP 217] Solka & Mercier by Thomas L. Solka, Marquette, for Rosboro lumber co.

Weber, Swanson, Vicary & Wietek by Peter H. Shumar, Marquette, for O'Dovero Const. Co.

Peacock, Ingleson, Vinocur & Brewster, P.C. by Mark L. Dobias and John W. Leudesdorff, Sault Ste. Marie, for Al Disdero Lumber Co.

[144 MICHAPP 218] Sullivan, Ward & Bone, P.C. by Michelle A. Thomas, Detroit, for Dick W. Ebling, Inc.

Before CYNAR, P.J., and HOOD and OLZARK, ^* JJ.

CYNAR, Presiding Judge.

As a result of property damage caused by a roof collapse, Cliffs Forest Products Company (Cliffs) filed a complaint against Al Disdero Lumber Company (Disdero), O'Dovero Construction Company (O'Dovero) and Wright & Barker, Ltd., on May 13, 1983. Disdero, in turn, filed a third-party complaint against Rosboro Lumber Company (Rosboro) and Dick W. Ebeling, Inc. (Ebeling), seeking indemnification or contribution. A motion for accelerated judgment on the third-party complaint was filed by Ebeling based on the period of limitations contained in M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839. The motion was granted on January 23, 1984.

On February 9, 1984, Disdero, Rosboro and O'Dovero joined in a motion for rehearing on the accelerated judgment motion. Rosboro sought to preserve its common law indemnification claim. O'Dovero sought leave to file a third-party complaint against Ebeling. Disdero wished a rehearing so its third-party claim against Ebeling could continue.

The trial court denied the motion for rehearing. O'Dovero appeals this order in No. 76964, Disdero appeals the order in No. 77006, and Rosboro appeals the order in No. 76627. All of the appeals are as of right. The cases were consolidated by order of this Court.

This case had its genesis in 1974. Cliffs contracted with Wright & Barker, Ltd., to design and supervise construction of a veneer mill in Munising, Michigan. Wright & Barker, Ltd., supplied the [144 MICHAPP 219] design specifications to Disdero. Disdero, located in Oregon, was the general supplier of building components for the mill.

Disdero engaged Rosboro, another Oregon business, to make the mill's parts. Disdero engaged Ebeling to supply the shop drawings for components known as corbels. Corbels are used with beams and trusses for roof support. Ebeling claims its involvement ended in January, 1975, when the shop drawings for the corbels were delivered.

The corbels and the rest of the components were made in Oregon and then assembled in Michigan by O'Dovero, the general contractor. The mill was completed in January, 1976. On January 5, 1982, the roof partially collapsed.

All of the issues raised by the respective appellants in this case relate to M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839, which sets the period of limitations for actions against state licensed architects and professional engineers performing design or supervision functions on improvements to real estate. We will address each of the respective appellant's claims in turn.

The first three issues were raised by O'Dovero alone. Its first claim is that M.C.L. Sec. 600.5839(1); M.S.A. Sec. 27A.5839(1) ¹ violates the due process clauses of the state and federal constitutions. This claim was previously addressed by the Michigan Supreme [144 MICHAPP 220] Court in O'Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336 (1980). In O'Brien, a decision dealing with four consolidated cases, state licensed architects and professional engineers used the statute as a bar to claims arising out of allegedly defective or unsafe conditions resulting from improvements to real estate. The Court specifically rejected the claim which is again made in this case. The claim was that the statute violated due process because it deprived the parties of a cause of action unless it accrued within the specified six-year period of limitations. O'Brien, supra, p. 15, 299 N.W.2d 336. While the Supreme Court noted that a situation like the one facing us here, where the cause of action accrued very shortly after the period of limitations expired, could conceivably deny a plaintiff due process, O'Brien, supra, p. 15, fn. 18, 299 N.W.2d 336, this case is still clearly within the holding of O'Brien. We are not empowered to ignore O'Brien as precedent. Marlow v. Krapek, 20 Mich.App. 489, 491; 174 N.W.2d 172 (1969). We conclude the statute does not deny due process of law.

O'Dovero's second claim is that M.C.L. Sec. 600.5839(1); M.S.A. Sec. 27A.5839(1) violates the equal protection clauses of the State and federal constitutions. Again we refer to O'Brien in order to resolve this claim. In O'Brien the Court specifically held that the statute did not violate the equal protection clause merely because it extends protection to state licensed architects and professional engineers which it does not extend to contractors. O'Brien, supra, 410 Mich. pp. 17-18, 299 N.W.2d 336. Again the O'Brien decision is binding and we must follow its holding. The statute does not violate the equal protection clauses of the state and federal constitutions.

O'Dovero's next assertion is a different constitutional type of challenge. O'Dovero asserts that M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839 violates the title-[144 MICHAPP 221] object clause of Const. 1963, art. 4, Sec. 24 because the statute's subject matter exceeds the scope of the Revised Judicature Act of which it is part. Const. 1963, art. 4, Sec. 24, states in the pertinent clause: "No law shall embrace more than one object, which shall be expressed in its title." The title was not amended when M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839 was added to the act by the Legislature in 1967. The title of the Revised Judicature Act, as amended by 1974 PA 52, states:

"AN ACT to revise and consolidate the statutes relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms and attributes of civil claims and actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil and criminal actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of act inconsistent with, or contravening any of the provisions of this act."

However, this claim is not properly subject to review because it was not raised in the trial court. Constitutional challenges may not be raised for the first time on appeal. Brookdale Cemetery Ass'n v. Lewis, 342 Mich. 14, 18, 69 N.W.2d 176 (1955); Lumber Village, Inc. v. Siegler, 135 Mich.App. 685, 692, 355 N.W.2d 654 (1984). ²

O'Dovero, Disdero and Rosboro collectively advance[144 MICHAPP 222] the next issue. Their claim is that the statute only applies to architects licensed by the State of Michigan and that, because Ebeling is licensed in Oregon and 17 other states but not in Michigan, M.C.L. Sec. 600.5839; M.S.A. Sec. 27A.5839 by its terms does not apply to Ebeling.

The statute states that it applies to "any state licensed architect or professional engineer". The statute is not plain and unambiguous on its face because the plain and ordinary meaning of the term "Any state licensed architect or professional engineer" is undefined. Therefore a judicial construction of the provision is proper and this Court must look outside of the actual wording of the statute to ascertain the legislative intent. Stover v. Retirement Bd. of St. Clair Shores Firemen & Police Pension System, 78 Mich.App. 409, 260 N.W.2d 112 (1977), lv. den. 402 Mich. 879 (1978).

The cardinal rule of statutory construction is to ascertain and effectuate the legislature's intent. Lansing v. Lansing Twp, 356 Mich. 641, 97 N.W.2d 804 (1959). Statutory language should be construed reasonably and the purpose of the statute and its objective should be kept in mind. Schoolcraft County Bd. of Comm'rs v. Schoolcraft Memorial Hospital Bd. of Trustees, 68 Mich.App. 654; 243 N.W.2d 708 (1976), lv. den. 397 Mich. 838 (1976). A provision should be read in its entirety and in connection with the rest of the statute. Whenever possible the meaning of...