Solution Source, Inc. v. LPR ASSOCIATES LTD.

• Decision Date: 18 October 2002
• Docket Number: Docket No. 226991.
• Citation: 652 N.W.2d 474,252 Mich. App. 368
• Parties: SOLUTION SOURCE, INC., Plaintiff-Appellee, v. LPR ASSOCIATES LIMITED PARTNERSHIP and LPR Land Company, Defendants-Appellants, and Manufacturers National Bank, a/k/a Comerica Bank, Defendant.
• Court: Court of Appeal of Michigan — District of US

652 N.W.2d 474

252 Mich. App. 368

SOLUTION SOURCE, INC., Plaintiff-Appellee, v. LPR ASSOCIATES LIMITED PARTNERSHIP and LPR Land Company, Defendants-Appellants, and Manufacturers National Bank, a/k/a Comerica Bank, Defendant.

Docket No. 226991.

Court of Appeals of Michigan.

Submitted April 9, 2002, at Detroit.

Decided July 30, 2002, at 9:05 a.m.

Released for Publication October 18, 2002.

Raymond & Prokop, P.C. (by Michael M. Jacob and Kevin B. Hirsch), Southfield, for the plaintiff.

Roger L. Premo, Farmington Hills, for LPR Associates Limited Partnership and LPR Land Company.

Before: BANDSTRA, P.J., and SMOLENSKI and METER, JJ.

SMOLENSKI, J.

LPR Associates Limited Partnership and LPR Land Company (hereafter defendants) appeal as of right from a postjudgment award of attorney fees pursuant to the attorney fee provision of the Construction Lien Act, M.C.L. § 570.1101 et seq., in favor of plaintiff Solution Source, Inc. We affirm.

Having been before this Court twice before, this case has a long procedural history, which we will only briefly revisit. Plaintiff originally filed suit in June 1993 to recover for work it performed for defendants, having filed a construction lien for the work in April 1993. In March 1994, a default judgment in the amount of $15,440.20 was entered against defendants for failure to comply with discovery. Defendants appealed. The circuit court and this Court, both on direct appeal, unpublished opinion per curiam of the Court of Appeals, issued December 13, 1996 (Docket No. 184798), and on rehearing, unpublished opinion per curiam of the Court of Appeals, 1997 WL 33352781, issued April 11, 1997 (Docket No. 184798), affirmed the judgment. Defendants' application for leave to appeal to the Michigan Supreme Court was denied. 456 Mich. 928, 581 N.W.2d 731 (1998).

The case was remanded to the trial court and plaintiff attempted to collect the original judgment through garnishments. Defendants filed numerous objections to plaintiff's efforts to garnish rent payment owed defendants by individual tenants of its building. The parties were able to resolve some of the garnishment issues when defendants produced a cashier's check for $18,000 to settle the outstanding judgment. The parties also stipulated that defendant would place $1,500 in escrow until further order of the court. However, the trial court refused to dissolve all the garnishments, as defendants had requested.

In April 1998, plaintiff filed a motion to settle the outstanding amount due, which, according to plaintiff, included attorney fees incurred in connection with the appellate and postjudgment proceedings under the Construction Lien Act. Plaintiff alleged that a motion for attorney fees was taken under advisement at the time the original judgment was entered in March 1994, and plaintiff believed that the issue was never adjudicated.

Subsequently it was discovered that the trial court had awarded plaintiff $3,325.88 in attorney fees and costs in an order entered on April 6, 1994. Defendants refused to pay the award and plaintiff sought to enforce the order through garnishment. The trial court held that plaintiff was permitted to collect the award through garnishment of defendants' assets. The trial court also entered an order enjoining defendants from further challenging plaintiff's efforts to collect on the order. In July 1998, the trial court held that plaintiff was entitled to postjudgment attorney fees. After an evidentiary hearing, plaintiff was awarded $25,415 in attorney fees pursuant to an order entered on April 6, 2000. It is from this order that defendants now appeal.

Defendants first argue that the Construction Lien Act does not provide for recovery of appellate attorney fees. We disagree. Questions of statutory construction are reviewed de novo. People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998). Generally, attorney fees are not recoverable unless authorized by a statute or court rule. Rafferty v. Markovitz, 461 Mich. 265, 270, 602 N.W.2d 367 (1999). Defendants contend that because M.C.L. § 570.1118(2) does not specifically provide for appellate attorney fees, plaintiff was not entitled to recovery. The applicable provision of the Construction Lien Act provides:

In each action in which enforcement of a construction lien through foreclosure is sought, the court shall examine each claim and defense that is presented, and determine the amount, if any, due to each lien claimant or to any mortgagee or holder of an encumbrance, and their respective priorities. The court may allow reasonable attorneys' fees to a lien claimant who is the prevailing party. The court also may allow reasonable attorneys' fees to a prevailing defendant if the court determines the lien claimant's action to enforce a construction lien under this section was vexatious. Attorneys' fees allowed under this section shall not be paid from the homeowner construction lien recovery fund created under part 2. [MCL 570.1118(2).]

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). The first step in determining legislative intent is to review the language of the statute itself. Id. If the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is neither required nor permitted. Id. However, if reasonable minds can differ concerning the meaning of a statute, judicial construction of the statute is appropriate. Id. Because M.C.L. § 570.1118(2) does not specifically authorize or prohibit the recovery of postjudgment attorney fees, we must look beyond the words of the statute to discern its meaning.

Our Supreme Court implied in Vugterveen Systems, Inc. v. Olde Millpond Corp., 454 Mich. 119, 560 N.W.2d 43 (1997), that postjudgment attorney fees were recoverable under the Construction Lien Act. In Vugterveen, the trial court had awarded attorney fees to the plaintiff pursuant to M.C.L. § 570.1118(2). Vugterveen, supra at 133, 560 N.W.2d 43. The Court noted that the award of attorney fees to the prevailing party was discretionary, but did not decide if the plaintiff was entitled to attorney fees because the issue regarding who was the prevailing party was to be decided on remand. Id. The Court stated: "Thus, the award of attorney fees is vacated pending remand. If Vugterveen prevails on remand, the trial court's original award of attorney fees should be reinstated, along with any other appropriate attorney fees or costs." (emphasis added).

This view is consistent with the remedial nature of the Construction Lien Act, which is to be construed liberally to "secure the beneficial results, intents, and purposes of this act." MCL 570.1302(1). The act is designed to protect the rights of lien claimants to payment for expenses and to protect the rights of property owners from paying twice for these expenses. Old Kent Bank of Kalamazoo v. Whitaker Constr. Co., 222 Mich.App. 436, 438-439, 566 N.W.2d 1 (1997).

Reasoning similarly and holding that appellate fees were available under the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq. this Court stated:

We hold that the underlying purpose behind the MCPA's award of attorney fees is to afford an indigent client the opportunity to seek protection and obtain a judgment where otherwise precluded because of monetary constraints.... Subsection 11(2) does not place any restriction on the recovery of attorney fees and does not limit attorney fees to those rendered at the trial court level. In the underlying lawsuit on the MCPA claim, the trial court originally granted defendants' motion for summary disposition, which was later reversed by this Court and remanded for further proceedings. We hold that the MCPA's award of reasonable attorney fees applies to appellate proceedings. [Smolen v. Dahlmann Apartments, Ltd., 186 Mich.App. 292, 297-298, 463 N.W.2d 261 (1990) (citations omitted).]

Furthermore, this Court has determined in numerous other cases that attorney fees for services rendered in connection with appellate proceedings are recoverable under similarly worded statutes, that likewise allow for the recovery of attorney fees and do not restrict the recovery to attorney fees incurred at the trial level. See Leavitt v. Monaco Coach Corp., 241 Mich.App. 288, 311-312, 616 N.W.2d 175 (2000) (appellate fees recoverable under the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act, 15 USC 2301 et seq.); Grow v. W A Thomas Co., 236 Mich. App. 696, 720, 601 N.W.2d 426 (1999) (appellate attorney fees recoverable under the Civil Rights Act, M.C.L. § 37.2101 et seq.); Bloemsma v. Auto Club Ins. Ass'n (After Remand), 190 Mich.App. 686, 689-691, 476 N.W.2d 487 (1991) (appellate attorney fees available under the Michigan's no-fault act, M.C.L. § 500.3148[1]); Escanaba & L S R Co. v. Keweenaw Land Ass'n, Ltd., 156 Mich.App. 804, 818-819, 402 N.W.2d 505 (1986) (appellate attorney fees available under the Uniform Condemnation Procedures Act, M.C.L. § 213.51 et seq., even though the statute only allows recovery for expenses incurred in defending against the improper acquisition of the property at issue).

Therefore, because the Construction Lien Act does not specifically limit recovery of attorney fees incurred before a judgment and in keeping with the purpose of attorney fee provisions, we hold that the Legislature intended that appellate and postjudgment attorney fees would be recoverable under the statute. However, recognizing the restrictions in M.C.L. § 570.1118(2), we conclude that the award of postjudgment attorney fees is limited to the prevailing lien claimant or the prevailing defendant if the court determines the lien claimant's suit was vexatious.

We also reject defendants' argument that the doctrines of merger and res judicata bar recovery because plaintiff's first motion...