Opinion
Docket No. 46012.
Decided June 16, 1981. Leave to appeal applied for.
McInally, Brucker, Newcombe, Wilke Debona, P.C. (by Richard L. Miller), for plaintiff.
Fiott Navara, P.C., for Merucci Bros., Inc.
Vernon M. Fitch, for Mt. Vernon Mobile Estates, Inc., Vernon Fitch, and Alice Fitch.
Dykema, Gossett, Spencer, Goodnow Trigg (by Derek I. Meier), for Standard Federal Savings and Loan Association.
William H. Dance, for Land S.E.A. Corporation.
Before: M.J. KELLY, P.J., and V.J. BRENNAN and T.M. BURNS, JJ.
This litigation involves claims and cross-claims for monies owed for work and a mortgage loan on the construction of a mobile-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. MCL 570.4; MSA 26.284 and MCL 570.6; MSA 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 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.
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 mechanics' 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), MCL 570.27; MSA 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 MCL 570.5; MSA 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).
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.
MCL 570.12; MSA 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 of the case and the number of working hours which reasonably can be justified; and (2) whether the defendant's refusal to pay the claimed debt was unreasonable. Sturgis, supra, Bosch v Altman, 100 Mich. App. 289; 298 N.W.2d 725 (1980).
It does not appear on this record that the trial court abused its discretion in awarding substantial attorney fees. The case was a complex one from a procedural standpoint. The court file shows that five parties were involved and that numerous motions and discovery proceedings were undertaken over the course of three and a half years. Eventually, a full trial was held. The court correctly reviewed this evidence as to reasonableness of the fees. It cannot be said here that the awards constituted an abuse of discretion.
Fourth, defendants assert error in that the lien of Superior Products was filed 92 days after the last material was supplied to the project.
The applicable statute, MCL 570.5; MSA 26.285, requires that a verified statement of account be recorded within 90 days from the last date on which material shall have been furnished. The statute does not expressly or impliedly alter the general court rule concerning the computation of limitation time.
GCR 1963, 108.6 provides:
"Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or legal holiday." (Emphasis added.)
In the instant case, the 90th day fell on a Sunday, the following Monday was a legal holiday (Washington's Birthday), and the account was recorded on the next day, a Tuesday. Hence, defendants' contentions are without merit.
Defendants next assert that the trial court erred in granting judgment in favor of Standard Federal on its foreclosure action and defendants' cross-claim for breach of contract. Defendants contend that the court erred in these decisions and that the issues should have gone to the jury. We note first that foreclosure actions are equitable in nature, and that defendants had no right to jury trial with regard to the foreclosure action. MCL 600.3180; MSA 27A.3180. Thus, no error occurred in this regard. Further, we find no error in the trial court's grant of judgment to Standard Federal with regard to defendants' breach of contract claim following defendants' counsel's opening statement. A trial court may direct a verdict following the opening statement when counsel concedes particular facts which demonstrate that no cause of action exists. Tyus v Booth, 64 Mich. App. 88; 235 N.W.2d 69 (1975). In the opening statement, defendants' counsel conceded that their right to advances from Standard Federal was contingent upon the Fitches submitting signed statements. This was not complied with until after the county had placed a "stop work" order on the job site which, correspondingly, placed defendants in breach of the mortgage loan agreement and released Standard Federal from the obligation to make further advances. Thus, viewing the evidence in a light most favorable to defendants, it is clear that defendants could not establish a prima facie case of breach of contract with regard to the disbursement refusal. The trial court's directed verdict in favor of Standard Federal was appropriate. Wynn v Cole, 91 Mich. App. 517, 524; 284 N.W.2d 144 (1979).
Lastly, we conclude that although the trial court improperly limited the defendants' attempts to introduce testimony regarding the nature of the contract with Nick Merucci Son the error was harmless. The evidence does not support defendants' contentions that completion of the contract would have been timely but for the fault of Merucci Bros.
In summary, we find none of the errors asserted by defendants, individually or collectively, warrant reversal. The decisions of the trial court are affirmed.