Brown Plumbing & Heating, Inc v. Homeowner Construction Lien Recovery Fund

Mallett, J.

We dissent from the majority opin*187ion and would affirm the decision of the Court of Appeals. The majority holds that the substantial compliance language of §302 applies only to the details for perfecting a construction lien under part 1 of the act and not to claims against the fund under part 2. As a result, complete adherence to the requirements set forth in § 203(3) is a condition precedent to recovery from the fund. We disagree.

i

Enacted in 1980, the Construction Lien Act seeks to achieve a dual protective purpose. It aspires to protect not only a lien claimant’s right to payment for wages or materials, but also the landowner from multiple payments for the same services. Fischer-Flack, Inc v Churchfield, 180 Mich App 606; 447 NW2d 813 (1989). The preamble to the act sets forth its broadly defined purpose.

An act to establish, protect, and enforce by lien the rights of persons performing labor or providing material or equipment for the improvement of real property; to provide for certain defenses with respect thereto; to establish a homeowner construction lien recovery fund within the department of licensing and regulation; to provide for the powers and duties of certain state oflicers; to provide for the assessments of certain occupations; to prescribe penalties; and to repeal certain acts and parts of acts.

Although a preamble is not to be considered authority for construing an act, it is useful for interpreting its purpose and scope. Malcolm v East Detroit, 437 Mich 132, 143; 468 NW2d 479 (1991); 2A Singer, Sutherland Statutory Construction (5th ed), § 47.04, pp 145-150.

*188A

The fundamental rules of statutory construction are instructive in determining the applicability of § 302. On several occasions, this Court has held that where the provisions of a statute are clear and unambiguous, they are to be applied as written. Gilroy v General Motors Corp (After Remand), 438 Mich 330, 341; 475 NW2d 271 (1991); Selk v Detroit Plastic Products, 419 Mich 1, 9; 345 NW2d 184 (1984). When construing statutory provisions, the court’s task is to discover and effectuate the intent of the Legislature. The legislative intent is to be derived from the actual language of a statute, and when the language is clear and unambiguous, no further interpretation is necessary. Storey v Meijer, Inc, 431 Mich 368; 429 NW2d 169 (1988). Where ambiguity exists, a court must give the statute a valid and reasonable construction that will reconcile any inconsistencies and give effect to all of its parts. Girard v Wagenmaker, 437 Mich 231, 238; 470 NW2d 372 (1991); Aikens v Dep’t of Conservation, 387 Mich 495, 499; 198 NW2d 304 (1972). A court must also ascertain "the evil or mischief which it is designed to remedy, and will apply a reasonable construction which best accomplishes the statute’s purpose.” Pittsfield Charter Twp v Saline, 103 Mich App 99, 105; 302 NW2d 608 (1981). Remedial statutes are to be construed liberally in favor of the persons intended to be benefitted by the statute. Bierbusse v Farmers Ins Group, 84 Mich App 34, 37; 269 NW2d 297 (1978).

With these precepts of statutory construction in mind, under the Construction Lien Act, a lien claimant such as plaintiff Brown Plumbing must establish several elements before recovering from *189defendant fund.1 Among the requirements is § 203(3)(h),2 which provides:

Subject to section 204,[3] a person who has recorded a claim of lien and who is precluded from recovering a construction lien under subsection (1) may recover from the fund the amount for which the lien is established. A person who seeks recovery from the fund shall establish all of the following:
(h) That the contractor or subcontractor, with whom the person claiming the construction lien contracted with, is licensed if required by law to be licensed.[4]

Section 302 of the act provides a self-contained construction directive.

This act is declared to be a remedial statute, and shall be liberally construed to secure the beneficial results, intents, and purposes of this act. Substantial compliance with the provisions of this act shall be sufficient for the validity of the construction liens provided for in this act, and to give jurisdiction to the court to enforce them. [Emphasis added.]_

*190We are asked to ascertain whether the substantial compliance language of § 302 applies to § 203(3)(h) of the act.5

B

The Construction Lien Act is separated into three parts.6 Parts 1 and 3 of the act borrow substantially from the former mechanics’ lien act.7 In fact, following the repeal of the mechanics’ lien act, the Legislature provided a "disposition table” that indicates the corresponding sections in the Construction Lien Act. Virtually all of the sections of the former mechanics’ lien act8 are now contained within parts 1 and 3 of the Construction Lien Act. Thus, part 3 of the Construction Lien Act, including § 302, was a substantial part of the original mechanics’ lien laws, which consisted of particularized procedures and qualifications for recovery of a lien.

Part 2 of the act was an entirely new set of provisions at the time of the act’s adoption in *1911982. Part 2 established the defendant homeowner lien recovery fund and promulgated rules and procedures for its administration. The fund, financed by periodic assessments on various residential licensees, was created within the Department of Licensing and Regulation.9 The fund created defenses against an action to foreclose a residential construction lien. Thus, while a construction lien may be entirely valid, homeowners may protect themselves from multiple payments by filing an affidavit indicating that they paid the contractor and cooperated with the department in the defense of the fund, and have not colluded with any other person to obtain payment from the fund.10 More importantly for present purposes, defendant fund also provides a remedy for lien claimants who would otherwise be precluded from recovering a construction lien because of the homeowner’s protection under the act.

Given the imprecise language of § 302 and the unique statutory history of the act, it becomes quite difficult to discern the Legislature’s intention from the plain language of the statute. Clearly, § 203(3)(h) was designed to protect the conscientious tradesmen from fraudulent contractors. In an attempt to achieve this purpose, this Court should apply a liberal construction to § 302 and find that it is applicable to part 2 of the act. If the Legislature intended that §302 only apply to the procedures for perfecting a construction lien under part 1, then it would have placed § 302 in part 1 of the act or provided language expressly limiting the application of § 302 to part 1. We believe that the placement of § 302 in part 3 of the act was more *192than "a matter of utility”;11 it was a deliberate, affirmative decision on the part of the Legislature, evidencing its intention that § 302 be applicable throughout the act, including part 2.

A statutory provision should be read in its entirety and in connection with the rest of the statute, and each provision of an act is to be read with reference to every other provision so as to produce an harmonious whole. In re Forfeiture of $5,264, 432 Mich 242, 251; 439 NW2d 246 (1989); Detroit v Detroit Police Officers Ass’n, 408 Mich 410, 481; 294 NW2d 68 (1980). In other words, due consideration must be given to all sections to produce an harmonious and consistent enactment of the entire statute. Preston v Dep’t of Treasury, 190 Mich App 491; 476 NW2d 455 (1991). Reading the Construction Lien Act in its entirety, it is clear that § 302 should be made applicable to. the requirements for collection from the fund, including § 203(3)(h).12

The defendant urges this Court to consider a line of cases that illustrate the development of the substantial compliance doctrine.13 Contrary to the defendant’s assertions, substantial compliance is not a judicially created doctrine. In the mechanics’ lien act of 1897,14 the original version of the current § 302 appears in § 27._

*193This act is hereby declared to be a remedial statute and to be construed liberally to secure the beneficial results, intents and purposes thereof; and a substantial compliance with its several provisions shall be sufficient for the validity of the lien or liens hereinbefore provided for, and to give jurisdiction to the courts to enforce the same. [1897 PA 143.]

Thus, the doctrine has existed in this state for nearly a century and has played an essential role in the development of property lien laws.

We decline to follow the cases proffered by the defendant which involve the then-existent residential builders act,15 not the Construction Lien Act or its predecessor. The theory behind a .licensure requirement is deterrence. In those cases, recovery was being sought by an unlicensed contractor. By denying a claim to an unlicensed contractor, the Legislature sought to discourage unlicensed entities from engaging in residential construction. Deterrence would not be achieved by denying plaintiff Brown Plumbing recovery from the fund pursuant to the Construction Lien Act. Brown Plumbing was fully licensed and contributed to the fund, but was denied recovery because of Primus Energy Homes’ lack of licensure. Should the Legislature determine that strict and not substantial compliance with § 203(3)(h) shall be required in the future, that change can be easily made.

Accordingly, we would affirm the decision of the Court of Appeals that the trial court properly granted plaintiff’s motion for summary disposition pursuant to MCR 2.116(C)(9) and (10). On the basis of the rules of statutory construction, and the remedial nature of the Construction Lien Act, we believe it is sufficient for a lien claimant to sub*194stantially comply with § 203(3)(h) in order to recover from the Homeowner Construction Lien Recovery Fund.

Cavanagh, C.J., concurred with Mallett, J.

See MCL 570.1203(3); MSA 26.316(203X3).

MCL 570.1203(3)(h); MSA 26.316(203)(3)(h).

Section 204, MCL 570.1204; MSA 26.316(204), provides:

The department shall not pay out of the fund to subcontractors, suppliers, and laborers more than $75,000.00 per residential structure. When it appears that the amount claimed from the fund, with respect to a residential structure, will exceed $75,000.00, the department may delay payment until the total amount to be paid can be ascertained. If the total amount payable to subcontractors, suppliers, and laborers exceeds $75,000.00, they shall be paid their proportional shares of that amount.

See MCL 339.601; MSA 18.425(601), MCL 339.2401; MSA 18.425(2401), and MCL 339.2403; MSA 18.425(2403).

There is disagreement concerning whether the term "substantial compliance” is ambiguous in nature. See Fischer-Flack v Churchfield, supra at 611 (the phrase "substantial compliance” is ambiguous). Cf. Norcross Co v Turner-Fisher Associates, 165 Mich App 170; 418 NW2d 418 (1987) (the language of § 302 is clear and unambiguous). However, this Court is not called upon today to extrapolate the term "substantial compliance” or determine whether the plaintiff’s actions conform to that term’s definition.

Part 1 of the act, MCL 570.1101-570.1128; MSA 26.316(101)-26.316(128), establishes detailed procedures and guidelines for the filing and recovery of construction liens. Part 2 of the act, MCL 570.1201-570.1207; MSA 26.316(201)-26.316(207), creates and provides procedures for recovery under the homeowner construction lien recovery fund. Part 3 of the act, MCL 570.1301-570.1305; MSA 26.316(301)-26.316(305), sets forth the act’s application and construction.

MCL 570.1-570.30; MSA 26.281-26.310, repealed by 1980 PA 497, §303.

The inconsequential exceptions that did not become a part of the Construction Lien Act are MCL 570.2; MSA 26.282 (liens upon land held jointly by husband and wife); MCL 570.4a; MSA 26.284(1) (false statements made by contractor with intent to defraud); MCL 570.28; MSA 26.308 (notice of proceedings by publication).

The Department of Licensing and Regulation is now known as the Bureau of Occupational and Professional Regulation. See Executive Order No. 1991-9.

MCL 570.1203(1); MSA 26.316(203X1).

Ante at 184.

Admittedly, there is an inherent difficulty in requiring a subcontractor to substantially comply with a statutory provision that requires the licensure of another party. However, this Court is not called upon today to determine the standard for substantial compliance with § 203(3)(h). There may, in fact, be adequate safeguards in place within the statute to remedy any difficulty in application.

Michigan Roofing & Sheet Metal, Inc v Dufty Rd Properties, 90 Mich App 732; 282 NW2d 809 (1979), vacated and remanded 409 Mich 887; 295 NW2d 230 (1980), (On Remand) 100 Mich App 577; 298 NW2d 923 (1980), lv den 412 Mich 872 (1981); Bernard F Hoste v Kortz, 117 Mich App 448; 324 NW2d 46 (1982); Superior American Homes v Fry, 130 Mich App 379; 343 NW2d 561 (1983).

1897 PA 143.

MCL 338.1501 et seq.; MSA 18.86(101) et seq.