Claim of lien on a bond; Construction Lien Act (CLA); Time price differential; Waived issue; Continental Building Company (CBC); North American Construction Enterprises, LLC (NACE)

The trial court did not err in concluding third-party plaintiff-Gypsum had a valid claim against plaintiff/third-party defendant-CBC and defendant/third-party defendant-Hartford on a bond they filed to discharge its claim of lien. Thus, the trial court’s order granting Gypsum summary disposition was affirmed. CBC and Hartford claimed “that Gypsum had 10 days to object to the bond pursuant to MCL 570.1116(2), and it did not do so. But MCL 570.1116(2) provides that the lien claimant has 10 days to object to the sufficiency of the surety on the bond. Without any objections to the sufficiency of the surety, Gypsum did not waive its ability to enforce a claim on the bond, as CBC and Hartford imply.” CBC further argued “that it did not have a direct contract with Gypsum; that CBC’s offer to pay Gypsum directly was never accepted by [defendant-]NACE, so an agreement was never reached, and the plain language of MCL 570.1107(1) bars Gypsum from claiming a lien against CBC.” But the court held that pursuant “to MCL 570.1116(1) and the language of the bond, Gypsum, the obligee, was entitled to file its action to enforce its claim of lien under the bond against CBC and Hartford, the obligors. The trial court applied the plain and ordinary meaning of MCL 570.1116(1) and properly concluded that Gypsum had a valid CLA claim against CBC and Hartford.” The court also found that “CBC and Hartford failed to establish a genuine issue of material fact” concerning the amount and legitimacy of Gypsum’s lien. As to CBC’s claim that it was “not liable under the bond because there was no underlying contract between” it and Gypsum, the court concluded that “there is no specific requirement in the CLA that a lien claimant have a contract with the obligor of the bond.” Given that the trial court’s opinion and order discussed “evidence beyond the pleadings such as invoices and waivers[,]” the court found that it “erred in granting summary disposition under (C)(9). Nevertheless, where summary disposition is granted under the wrong subsection of MCR 2.116, we will review the trial court’s order under the correct rule.” The court held that because “the trial court correctly found that Gypsum was entitled to summary disposition under MCR 2.116(C)(10) and (I)(2), reversal is not warranted.”