Superior Products Co. v. Merucci Bros., Inc.

• Decision Date: 16 June 1981
• Docket Number: Docket No. 46012
• Citation: 309 N.W.2d 188,107 Mich.App. 153
• Parties: SUPERIOR PRODUCTS COMPANY, a Michigan corporation, Plaintiff, Cross-Defendant-Appellee, v. MERUCCI BROS., INC., a Michigan corporation; Mt. Vernon Mobile Estates, Inc., aMichigan Corporation; Standard Federal Savings and Loan Association, a savingsand loan association; Land S.E.A. Corporation, a Michigan corporation, Defendants,Cross-Plaintiffs-Appellees, and Mt. Vernon Mobile Estates, Inc., a Michigan Corporation; Vernon Fitch and AliceFitch, his wife, individually, Defendants, Cross-Defendants-Appellants. 107 Mich.App. 153, 309 N.W.2d 188
• Court: Court of Appeal of Michigan — District of US

Page 188

309 N.W.2d 188

SUPERIOR PRODUCTS COMPANY, a Michigan corporation, Plaintiff, Cross-Defendant-Appellee, v. MERUCCI BROS., INC., a Michigan corporation; Mt. Vernon

Mobile Estates, Inc., aMichigan Corporation; Standard

Federal Savings and Loan Association, a savingsand loan

association; Land S.E.A. Corporation, a Michigan

corporation, Defendants,Cross-Plaintiffs-Appellees,

and

Mt. Vernon Mobile Estates, Inc., a Michigan Corporation;

Vernon Fitch and AliceFitch, his wife,

individually, Defendants,

Cross-Defendants-Appellants.

Docket No. 46012.

107 Mich.App. 153, 309 N.W.2d 188

Court of Appeals of Michigan.

June 16, 1981.

Rehearing Denied August 6, 1981.

Released for Publication Aug. 26, 1981.

[107 MICHAPP 156] Richard Lee Miller, Detroit, for Superior Products Co.

Gary W. Novara, Dearborn, for Merucci Bros. Inc.

Derek I. Meier, Detroit, for Standard Federal S&L.

William H. Dance, Detroit, for Land S.E.A. Corp.

Vernon M. Fitch, Birmingham, for Mt. Vernon Mobil Estates, Vernon Fitch and Alice Fitch.

Before KELLY, P. J., and V. J. BRENNAN and T. M. BURNS, JJ.

V. J. BRENNAN, Judge.

This litigation involves claims and cross-claims for monies owed for work and a mortgage loan on the construction of a mobile [107 MICHAPP 157] home park owned by defendant Mt. Vernon Mobile Estates, Inc., which, in turn, is owned and controlled by defendants Vernon and Alice Fitch. For brevity, these parties will be referred to collectively as defendants or Mt. Vernon. They appeal as of right from adverse verdicts rendered by the trial court sitting with an advisory jury. We address the issues raised on appeal seriatim.

Defendants first argue that the liens of both Merucci Bros. and Superior Products were invalid because of their failure to effect personal service on Mt. Vernon or its agents within the county where the mobile home park was located. Each of the statutory provisions under which Merucci Bros. and Superior Products were obligated to follow in serving their sworn statements or accounts provide that if neither the owner nor his agent can be found within the county where the premises are located, substituted service may be made by posting. M.C.L. § 570.4; M.S.A. § 26.284 and M.C.L. § 570.6; M.S.A. § 26.286 respectively. Both Merucci Bros. and Superior Products made service by posting the sworn statements on a billboard at the mobile home park site. The lower court found that this sufficiently complied with the statutory provisions and upheld the liens. The court indicated that it was not convinced that the Fitches' sales office was actually opened at the time when service was being attempted.

At trial, Merucci Bros. and Superior Products offered testimony as to their efforts to perfect personal service. Conversely, defendants claimed that Mrs. Fitch was present at a nearby mobile home sales office during the relevant period of time. In turn, this was controverted by other evidence. In light of this conflicting evidence, we affirm the trial court's finding.

[107 MICHAPP 158] An appellate court will set aside the findings of fact of a trial court sitting with or without an advisory jury only where such findings are "clearly erroneous". In making this determination, regard is given to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it. Tuttle v. Dep't of State Highways, 397 Mich. 44, 46, 243 N.W.2d 244 (1976), Bergy Brothers, Inc. v. Zeeland Feeder Pig, Inc., 96 Mich.App. 111, 292 N.W.2d 493 (1980). In the instant case, we are left with no firm and definite conviction that a mistake has been made. This conclusion is buttressed by the fact that the mechanic's lien statute is to be construed liberally, in light of its remedial purpose to secure the beneficial results intended. Spartan Asphalt Paving Co. v. Grand Ledge Mobile Home Park, 400 Mich. 184, 188-189, 253 N.W.2d 646 (1977), M.C.L. § 570.27; M.S.A. § 26.307. Therefore, the lower court's finding that service by posting was sufficient is affirmed.

Secondly, defendants contend that the Merucci Bros.' lien should be set aside because it failed to make a "just and true statement or account of the demand due him" in compliance with M.C.L. § 570.5; M.S.A. § 26.285.

It has been held that a largely excessive statement must be treated as insufficient. Parties are not permitted to include speculative items, and, since the means of information is within their reach, they are held to a great degree of accuracy. Brennan v. Miller, 97 Mich. 182, 56 N.W. 354 (1893). However, an excessive claim will not invalidate a lien where the amount was claimed in good faith. Hart v. Reid, 243 Mich. 175, 186-187, 219 N.W. 692 (1928). Thus, a clerical error in the claimant's accounts will not deprive him of his lien. Corlett-Stone Lumber Co. v. Parker, 230 Mich. 537, 538-539, 203 N.W. 122 (1925).

[107 MICHAPP 159] Merucci Bros.' statement of account claimed that $99,214.50 was owed, even though Mt. Vernon had only been billed for $96,214.50. Angelo Merucci testified that the correct amount was the lower figure and that the mistake was the result of a mathematical error by his secretary. He stated that he only was made aware of the error when the figures were reviewed later by his attorney. He indicated that he did not intend to claim more than what was owed. The trial court admitted into evidence the secretary's worksheet, which indeed indicates that a mathematical error was made. There was no testimony or other evidence to indicate that the error was made in bad faith. The lower court concluded that the error was made in good faith and that Mt. Vernon had not been prejudiced. In light of the testimony by Merucci and the absence of any evidence to the contrary, it cannot be said that these findings clearly were erroneous. Tuttle, supra.

Next defendants complain that the trial court's award of attorney fees was excessive. We disagree.

M.C.L. § 570.12; M.S.A. § 26.292 provides in part:

"The court may, in its discretion, allow a reasonable attorney's fee when judgment shall be rendered in such proceeding, in favor of the parties succeeding therein."

The awarding of attorney fees is within the discretion of the trial judge, and it will be upheld absent an abuse of discretion. Sturgis Savings & Loan Ass'n v. Italian Village, Inc., 81 Mich.App. 577, 584, 265 N.W.2d 755 (1978), William & Works, Inc. v. Springfield Corp., 76 Mich.App. 541, 551, 257 N.W.2d 160 (1977), lv. den. 402 Mich. 908 (1978). Among factors that are appropriate to consider in assessing such fees are: (1) the complexity and difficulty [107 MICHAPP 160] of the case and the number of working hours which reasonably can be justified; and (2) whether ...