Order Michigan Supreme Court
Lansing, Michigan
December 28, 2005 Clifford W. Taylor,
Chief Justice
121009 (84) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
CENTRAL CEILING & PARTITION, INC., Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 121009
COA: 225378
Wayne CC: 98-810597-CH
DEPARTMENT OF COMMERCE,
Defendant-Appellant,
and
KITCHEN SUPPLIERS, INC.,
Defendant-Appellee,
and
CAPPY HEATING AND AIR
CONDITIONING, INC.,
Intervening Plaintiff-Appellee,
and
PRIMEAU HOMES, INC.,
Defendant,
and
WAYNE COUNTY REGISTER OF DEEDS,
Defendant.
_________________________________________/
After granting leave to appeal, 468 Mich 870 (2003), this Court carefully
considered the written and oral arguments of the parties and affirmed the judgment of the
Court of Appeals, albeit for different reasons. The Court concluded, based on the limited
facts of this case, that the liens presented to the Wayne County Register of Deeds were
timely recorded. 470 Mich 877 (2004).
In the order dated June 17, 2004, this Court ordered the Wayne County Register of
Deeds to show cause why the Register of Deeds should not be required to pay the costs
incurred by the other parties in the prosecution and defense of this action. We further
ordered the Wayne County Register of Deeds to send the Clerk of the Court quarterly
written reports on its progress toward bringing its recording system into compliance with
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the requirements of MCL 565.24 and 565.25. The responses of the Register of Deeds,
the Michigan Homeowner Construction Lien Recovery Fund, and the Michigan Land
Title Association to this Court’s order have been considered.
On February 23, 2005, Plaintiff Central Ceiling only agreed to waive its claim for
case evaluation sanctions against the Department of Commerce. On order of the court,
the Register of Deeds will not be required to pay costs, a public question being involved.
The Register of Deeds shall no longer be required to file quarterly reports of its progress
toward bringing its recording system into compliance with the statutory requirements.
We do not retain jurisdiction.
YOUNG, J., concurs and states as follows:
I concur with the order ending this Court’s jurisdiction over this matter without
imposing costs on the Wayne County Register of Deeds (Register). However, I wish to
emphasize the Register’s current and ongoing noncompliance with this state’s recording
statute, which compromises and jeopardizes the interests of tens of thousands of Wayne
County property owners. It is my hope that the elected officials of Wayne County will
recognize this grave concern and act immediately to protect their constituents.
This troubling issue came to this Court’s attention in the instant case, a dispute
over whether construction liens were timely filed. Pursuant to the recording act, MCL
570.1111(1), in order to protect his interests, a lien claimant must record with the register
of deeds a construction lien within 90 days of the last furnishing of labor or material.
MCL 565.25 requires the register of deeds to maintain an entry book that records the day,
hour, and minute of receipt. Plaintiff, Central Ceiling & Partition, Inc., timely presented
its construction liens to the Register within the 90-day period. The Register did not
actually record the liens and assign a liber and page number until after the 90-day period
had lapsed. On the basis of the unique facts of this case, however, we affirmed the Court
of Appeals decision that plaintiff’s liens were timely recorded. 470 Mich 877 (2004).
Following oral arguments, when it became clear that the recording act was not
being followed in Wayne County, this Court ordered the Register to file briefs indicating
whether its current recording practices complied with the recording statute. We
concluded on the basis of the Register’s responses that they did not. The Register did not
maintain an entry book recording the day, hour, and minute of receipt (e.g., January 1,
2005, at 10:00 a.m.) as required by statute. It only noted the year, month, and day (e.g.,
January 1, 2005). Second, the Register typically did not record the liens until days or
weeks after their receipt. In the instant case, for example, three contractors' liens were
not recorded until 35, 48, and 50 days after the lien claimants presented them to the
Register. As a result, a lien claimant may have presented its lien within the 90-day
window, but, because of the delay in recording, the entry book would not reflect that the
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lien was “recorded” within 90 days. Consequently, the construction lien would be
extinguished under MCL 570.1111(1). Moreover, because the Register’s office failed to
record the hour and minute when the liens were received, it could not determine priority
among conflicting filings as contemplated by the recording act.
We added the Register as a defendant because costs were sought against it for its
noncompliance with the statute that had occasioned the dispute in this case. This Court
ordered the Register to file quarterly reports and inform this Court of its progress in
updating its recording procedures to comply with the recording act. 470 Mich 877
(2004).
I attach herewith our most recent communication from the Register, a November
1, 2005, letter responding to this Court’s request for further information regarding its
compliance with the statute. This Court asked the Register:
Has implementation progressed to the point that currently received lien
documents are recorded in the new system and the relevant information
including day, hour, and minute of receipt, [is] retrievable in compliance
with MCL 565.24?
The Register answered in the negative, indicating that it was maintaining the
existing, noncompliant system until its new system could be installed.
While the Register may have signed a contract to install and implement a new
computerized system sometime in 2006 that will remedy its noncompliance, the Register
is still not currently complying with the statute. According to the Register, it receives
approximately 2,500 to 3,000 documents a day. The new system will not be
implemented for six to nine months. On a daily basis, thousands of documents are
currently being improperly recorded and added to the huge backlog of filings that also do
not comply with the law. In Wayne County, lien claimants and property owners receive
little protection that the recording act is designed to provide, and it is these individuals
who will suffer the consequences of the Register’s noncompliance. Liens, mortgages,
and other property interests are jeopardized by the failure of the Register’s office to
perform its duty in accordance with the law.
It is not this Court’s responsibility to direct the operations and funding of an arm
of the executive branch. Hence, we will defer to the other political branches to
accomplish that which we could not during the pendency of this action. However, it is a
grievous thing when a governmental agency fails to protect the very thing it is established
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to safeguard—the property rights of its citizens. I urge the appropriate elected officials to
take account of and remedy this problem as soon as possible.
WEAVER, J., joins the statement of YOUNG, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 28, 2005 _________________________________________
t1220 Clerk